# FILED April 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKS ON

MYRA JEAN McCOR

KLE, )

) Plaintiff/Appella

nt, ) Dyer Law No. 96-178

) vs. ) ) Appeal No. 02A01-9701-CV-00020 THE COUNTY OF DYER, TEN NESSEE )

) Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT OF DYER COUNTY

AT DYERSBURG, TENNESSEE

THE HONORABLE J. STEVEN STAFFORD, JUDGE

For the Plaintiff/Appellant : For the Defendant/Appellee : Charles M. Agee, Jr. Wesley Clayton Dyersburg, Tennessee David W. Camp Jackson, Tennessee

AFFIRMED

HOLLY KIRBY LILL

ARD, J.

CONCUR: ALAN E. HIGHERS, J

. DAVID R. FARMER, J.OPINION

This is a premises liability case under the Tennessee Governmental Tort Liability Act. The trial court grant

ed summary judgmen

t to the defendant

governmental ent

ity. We affirm. On September 22, 1994, plaintiff Myra McCorkle (“McCorkle”) went to the Dyer County Commodity

Supplemental Feed

ing Program building . While leaving the premises, she trippedon the stairs, fell, and broke her leg. McCorkle alleges that the old and torn carpet covering the stairs caused her fall. She subsequently filed this lawsuit against Dyer County (“the County”), see king damages for her injuries. The County filed a motion for summary judgment, asserting that it had no knowledge of the dangerous condition of the stairs at the time of McCorkle’s fall, and therefore was not liable for her injuries. In support of its moti on, the County filed

the affidavits of

county employees who worked at the commodity exch

ange. In these a

ffidavits, the employees stated that to their knowledge, “the carpet on the steps and the

surrounding are

a was not wrinkled

, loose or torn in an

y way” at the time of McCorkle’s fall. In opposition to the Coun ty’s motio n, M cCorkle submitted only her own deposition. McCorkle

testified that, at the time of her fall, the carpet appeared old, ripped, and torn. Oral argument on the County’s motion for summary judgment was heard onSeptember 23, 1996. At the hearing, the trial court made it clear to the parties that the central issue was the County’s actual or constru ctive no tice of the dangerous and defective condition, i.e. , the tears in the carpet. On the

samedate, after considering the affidavits in support of the County’s motion as well as McCorkle’s deposition testimony, the trial court granted the motion. The trial court found that “the plaintiff has failedto show that the defendant possessed either actual or constructive notice of the alleged defect.” On October 7, 1996, McCorkle filed a M otion for Relief f

rom Judgment, pursu

ant to Rules 59 and 60 of the Tennes see Rules of Civil Procedure, requesting that the trial court set aside the judgmentin the defendant’s fa vor. In support of

her motion, McCork

le submitted an affidavit from Opal Hastings, a witness to McCorkle’s ac c ident. In her affidavit, Hastings stated that she was familiar with the place where the accident occurred, and that the steps where McCor kle fell were covered withold and worn carpet. She said that the carpet had been there since she began receiving food at that location and “was severely worn, raged [sic] and had tear places in it for at least one year prior” to the accident.2

The trial court denied McCorkle’s motion. In a written order, the trial court not

ed that both parties knew Hastings was a potential witnes s well prior to the hearing on the summary judgment motion. Indeed, the trial court observed that McCorkle had identified Hastings as a witness in her June 1996 deposition, and had even ac knowledged she wa

s distantly relate

d to Hastings. The trial court held that “[a] pa

rty is not entitled to

relief from a jud

gment base d on newly discovered evidence where the moving party was aware of the information before trial and a tactical decision

was made not to use that information.” Thetrial court cited Spence v. Allstate Ins. Co. , 883 S.W.2d 586 (Tenn. 1994). McCorkle now appeals the trial court’s grant of summary judgment in favor of the County, as well as the denial of McCorkle’s motion to set aside the judgment. McCorkle

first alleges tha

t the trial court e

rred in granting the County’s motion for summary judgment. She maintains that a reasonable trier of fact could infer that the Count y should hav e known about the dangerous condition on the stairs long before the accident because of the carpet’s

worn condition. McCorkle argues that her deposition is enough to raise a factual issue about whether the County had knowledge of the dangerous condition. Summary judgment may be granted when the movant demonstrates that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R

. Civ. P. 56.03. The mov ant bears the bur

den of demonstrat

ing that there is no

genuine issue o f material fact. Byrd

v. Hall , 847 S.W.2d 208, 211 (Tenn. 1993); Downen v. Allstate Ins. Co. , 811 S.W.2d 523, 524 (Tenn. 1991). In considering a motion for summary judgment, “courts must view the evidence in the li

ght most favorable

to the nonmoving par

ty and must also

draw all reasonable inferences in the nonmoving party's favor.” Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995) (citing Byrd , 847 S.W.2d at 210-11). Summar y judgment sho uld be granted only when both the facts and the conclusio

ns to be drawn fro

m the facts permit

a reasonable

person to reach only one conclusion. Id. We review the trial court’s grant of summary judgmen t de novo , with no presumption of correctness. Id. McCorkle brought her lawsuit under the Tennessee Governmental Tort Liability Act. See Tenn. Code Ann. § 29-20-101 to -407 (1980 & Supp. 1997). Governmental entities aregenerally3

immune from suit; however, in some situations, immunity may be removed. See W illiams v. Memphis Light, Gas & Water Div. , 773 S.W.2d 522, 5 2 3 (Tenn. App. 1988). Tennessee Code Annotated § 29-20

-204 provides: (a) Immunity from suit of a governmental entity is removed for any injury caused by the dangerous o

r defective con

dition of any public

buil ding, str

ucture, dam, reservoir or other public improvement owned and controlled by such governmental entity. (b) Immunity is not removed for latent defective conditions, nor sha ll this section apply unless constructive and/or actual notice to the governmental entity of such condition be alleged and proved. . . . Therefore, to withstand the County’s sum mar y judgment motion, Mc Corkle was requir

ed to demonstrate that a genuine issueof fact existed as to the County’s constructive or actual notice of the dangerous condition:

In order for an owner or operator of premises to be held liable for negligence in allowing a dange rous or defec tive condition to exist on its premises, it must be shown that the condition (1) was caused or created by the owner, operator, or his agent, or (2) if the condition was created by someone other than the owner, operator, or his agent, there must be actual or constructive notice on the part

of the owner or operator that the condition e

xisted prior to

the accident. Constructive knowledge can be shown by proving the dangerous or defective condition existed for such a length of time that the defe

ndant, in th

e exerci se of reasonable

care, should hav

e become aware of such condition. Martin v. Washmaster Auto Cente r, U.S.A. , 946 S.W.2d 314, 318 (Tenn. App. 1996) (citations omitted). Constructive notice has been defined as “‘information or knowledge of a fact imputed by law to a person (altho

ugh he may not actu

ally have it), because he could have discovered the fact by proper diligence, and his

situation was such a

s to cast upon him the duty of inquiring into it.’” Kirby

v. Macon Co. , 892 S.W.2d 403, 409 (Ten n. 1994) (citing Black’s Law Dictionary 1062 (6th ed. 1990)). McCorkle argues that the testimony in her deposition that the carpet was old, worn, and torn would permit a reasona

ble fact finder

to infer that the Co

unty had construc

tive knowle

dge of the defec t in the carpet. She contends that the age of the carpet indicated that “the dangerous or defective condition existed for such a length of time that the defendant, in the exercise of re

asonable care, should have become aware of such condition.” Martin , 946 S.W.2d at 318. It is undisputed that McCorkle’s fall was caused bythe tear in the carpet, not by the fact that the carpet was old. Fr

om McCorkle’s test

imony, it may be inferred

that carpet that i

s old and worn may be more prone to tearing than newer carpet. However, based on McCorkl e’s dep osition testimony alone, without considering the affidavit by Hastings, the record contains no indication of4

how long the tears in the carpet had existed. Therefore, McCorkle’s deposition testimony does not establish that any tears in the carpet had existed for such a length o f time that the County

should ha ve been aware of them. Consequently, McCorkle’s testimony is insufficient to withstand th e County’s motion for summary judgment and the supporting affidavits. The trialcourt did not err in granting the County’s motion. McCorkle

also argues that the trial court erred in denying her motion for relief from judgment. The motion states that it is brought “pursuant to Rules 59 and 60” of the Tennessee Rules of Civil Procedure. McCorkle’s motion, which requests “relief from judgment,” could fall un der eithe r Rule 60.02 or Rule 59.04 of the Tennessee Rules of Civil Procedure. A Rule 60.02 motion seeks relief from fina l judgment because of, inter alia , mistake, surprise, inadvertence, excusable neglect, or fraud. The trial court’s disposition of a Rule 60.02 motion is not reversed on appeal unless th e appellate court finds an abuse of discretion. Underwood v. Zurich Ins. Co. , 854 S.W.2d 94, 97 (Tenn. 1993); Banks v. Dement Constr. Co. , 817 S.W.2d 16, 18 (Tenn. 1991). Rule 59.04 merely states the time period in whi ch a mot ion to alter or amend a judgment must be fil ed. Th e decision of whether to grant a Rule 59.04 motion based on newly discovered evidence “is discretionary with the trial judge.” Collins v. Greene Count y Bank , 916 S.W.2d 941, 945 (Tenn. App. 1995). The movant must show that the new evidence was not known at the time the summary judgment motion was heard “and that it could not have be

en ascertained

by the exercise of reasonable diligence.” Id. In considering the de

nial of a Rule

59.04 mo tion, it is less clear whether the standard of review is abuse of discretion or d e n ovo . There is some authority that the standard is abuse of discretion, even where the Rule 59.04 motion is filed following entry of summary judgment rather than after a trial. See Tuck v. State , No. 03A01-9510-BC-00355, 1996 WL 3 100 12, at *4 (Tenn. App. June 11, 1996) (citing Esstman v. Boyd , 605 S.W.2d 237 (Te nn. App. 1979)). Be

cause Rule 59.04 of the Tennessee Rules of Civil Procedure is

similar to the corr

esponding feder

al rule, Rule 59(e) of the Federal Rules of Civil Procedure , decisions constr

uing the federal

rule are helpfu

l. See Parker v. Vanderbilt Univer

sity , 767 S.W.2d 412, 421 (Tenn. App. 1988) ; Marlowe v. First State Bank of Jacksbo ro , 52 T enn. App. 99, 105, 3 71 S.W.2d 826, 828-2 9 (1962). Federa

l courts interpreting Rule 59(e) have h eld that “where

a Rule 59(e) motion seeks reconsideration of a grant1 Under the Federal Rule, a motion to alter or amend the judgment “must rely on one of

three major grounds: ‘(1) an intervening change in controlling law; (2) the availability of new evidence [not available previously]; [or] (3) the need to correct clear e rror [of law] or prevent manifest injustice.’” North River Ins. Co. v. CIGNA Reinsurance Co. , 52 F.3d 1194, 1218 (3d Cir. 1995) (citations omitted). The motion should not “present evidence which was available but not offered at the original motion or trial.” Natural Resources De fense Council

, 705 F. Supp. 698, 702 (D.D.C. 1989) (citing cases). 5 of summary judgment, . . . we conduct a de novo r eview.” Nation al Leadburners Healt h and Welfare Fund v. O. G. Kelley & Co., Inc. , 129 F.3d 372, 374 (6th Cir. 1997). 1 McCorkle

submitted Hasting’s affidavit in support for her motion for relief from judgment. McCorkle

describes as “ne

wly discovered e

vidence” Hastin

gs’ testimony thatthe carpet on the stairs had “had tear place

s” for at least a

year. Although McCorkle acknowledges that she knew Hastings

was a witness to her fall, she asserts in her brief on appeal tha t she “did not know exactly the substance of Hastings’ testimony in toto .” McCorkle cites Schaefer v. Larsen , 688 S.W.2d 430 (Tenn. App. 1984), in support of her argument. In Schaefer , the Court stated:

we are not at all satisfied that the stri c t requirement of r ules regarding ne

wly discovered

evidence should be applied to the matt er of summary judgments. In matters of newl y discover ed evidence, the parties have already had a trial . The parties are entitled to onetrial. The basic purpose of courts and judges is to afford the citizenry a public forum to air disputes. . . . [I]n the matter of the reconsideration of the granting of a summary judgment motion, the party is only seeking that which he is basically entitledto--a first trial

. We are of the opinion that when a summary judgmenthas been granted because the ca se at that point presented no facts upon which a plaintiff can recover, but prior to that judgment becoming final, the plaintiff is able to produceby motion facts which are material and are in dispute, the motion to alter or amend th

e judgment should be

looked upon with

favor, as the purpose of the summary judgme

nt procedure is

not to abate the trial docket of the Trial Court, but only to weed out cases for trial in which there is no genuine issue of fact. Schaefer , 688 S.W.2d at 433-34 (citation omitted). Therefore, because Hastings’s testimony was purportedly

discovered after summary judgment, rather than after trial, McCorkle argues that th e trial court erred in not granting the motion for relief from judgment. The County argues that relief from judgment on the ba sis of newly discovered evidence requires a finding that the e vidence could not

have been discove red through the exercise of reasonable

diligence. In support of this position, the County cit es Spence v. Allstate Ins. Co. , 883 S.W.2d 586 (Tenn. 1994). In Spence , a divorced cou ple held title to a house as tenants by the entirety. They sued their insurer for the p roceeds under their fire insurance policy. The insurer deniedpayment on the grounds the former wife was responsible for setting the fire that caused the6

da mage. Id. at 589. Because the parties’ interests were not separate, the insurer asserted tha t th e former wi fe’s actions barred the former husband from recovering proceeds from the policy. After trial, the insureds filed a motion under Rule 60.02 for relief from the judgment on grounds of newly discovered

evidence concerningthe identity of the person responsible for setting the fire. Id. at 595. In support of this motion, the former wife stated in an affidavit that, until June 1993, she was unaware of

another party who could have been responsible for setting the fire. The former wife’s affidavit conflicted with he

r deposition, taken in October 1991, in which she indicated she had suspicions concerning the person mentioned in the affidavit. The Court found that the new evidence

was not "newly-discovered," and opined that the for

mer wife’s deci

sion to not accuse

another party

o f setting the fire appeared to be a tactical decision. The Court further stated that “even if the evidence was in some sense newly-discovered, relief from a judgment on the basis of such evidence may only be granted where the evidence could not have be en discovered through the exercise of reasonable diligence.” Id. at 596. In this situation, the Spence and Schaefer decisions can be reconciled. As noted by the trial court, relief from the judgment is granted only where there is newly-discovered evidence which could not have been discovered through the exercise of reasona ble dili gence. See Spence , 883 S.W.2d at 596; Collins , 916 S.W.2d at 945. However, the trial court’s determination of whether the evidence constitutes “newly-discovered evidence” must be made in light of the fact tha t the judgmentfrom which relief is sought is summary judgment,

rather than judgm

ent following a tri

al. Therefore, the motion for relief and the assertion of “newly-discovered evidence” must be “looked upon with favor” by the trial court. See Schaefer , 688 S.W.2d at 433. As a movant, McCorkle had the burden of demonstrating that the “new” evidence was not known at the time the summary judgm ent motion was heard, and “that it could not have been

asc ert ainedby the exercise of reasonable diligence.” Collins , 916 S.W.2d at 945. McCorkle’s appellate brief states only t

hat McCorkle “did

not know exactly th

e substance of Ha

stings’ testimony, in toto .” The motion for relief from judgment submitted by McCork le includes only Hastings’ affida

vit, with no indication in the record that McCorkle did not have actual knowledge of the extent

of Hastings’ knowledge. Even if we were to assume arguendo that McCorkle did not have actual knowledge

of Hastings’ knowl

edge of the length

of time the tears h

ad been in the ca

rpet, the re cord con tains no indication that this information “could not have been ascertained by the7

exercise of reasonable diligence.” Id. Looking upon McCork le’ s motion with favor, pursuant to Schaefer , does not absolv e McCorkle

of the obligation to present evidence that the information could not have been discovered with reasonable diligence. In this case, well prior to summary judgment, McCorkle was aware that Hastings was a witness, and indeed is even remotely related to Hastings. It was McC orkle’s res ponsibility to discover the extent of Hastings ’ knowledge before the entry of summary judgment. McCorkle failed to carry the burden of demonstrating that she could not have discovered Hastings’ knowledge of the age of the tears in the

carpet “through the exercise of reasonable diligence.” Spence , 883 S.W.2d at 596. Therefore, regardless of whether t he standard of review for the trial court’s denial of the motion for relief from

judgment is de novo or

reversal only upon a finding of abuse of discretion, McCorkle

failed to proffer any reason why Hastings’ knowledge of the age of the tears in the carpet could not, in the exercise of reasonable diligence, have been discover ed prior to the entry of summary judgment. Consequently, we f ind no error in

the trial court’s denial of the motion for relief from judgment. The decision of the tr

ial court is affir

med. Costs are asse

ssed against the Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.