### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 8, 2003 Session LINDA LAWS, EX ECUTRIX OF THE ESTATE OF MAR

Y EULA SLOAT, DECEASED v. WA TER AND LIGHT C OMMISSION OF THE TOWN OF GREENEVILLE, ET AL 

### . Appeal from the Circuit Court for Greene County No. 14168 Ben K. Wexler, Judge FILED SEPTEMBER 3, 2003
No. E2002-01152-COA-R3-CV

This appeal questions whether the Trial Court erred i n its judg ment ag ainst the A ppellant /Defend ant, Water and Light Commission of the Town of Greeneville, Tennessee, for per sonal injuries sustained by a Greeneville resident as a result of the sm oking of se wer lines b y t

he Ap pella nt. We affirm the judgmen t of the Tr

ial Court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed ; Cause Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which C HARLES D. S USANO , J R
. and D. M ICHAEL S WINEY , joined. Jeffrey M. Ward, Greeneville, Tennessee, for the Appe llant, Water and Light Commission of the Town of G

reenev ille, Ten nessee, et al
J. Ronnie Greer, Greeneville, Tennessee , for the Appellee, Linda Law s, in Her C apacity

as Executr

ix of the Estate of Mary

Eula Sloat, Deceased
OPINION
The Water an d Lig

ht Commissi on of the Town of Greeneville (hereinafte r "the Commission" ) is a government entity in charge of water and se wer services for the Town of Greeneville. The Co mmis sion emplo ys a smoki ng p rocedure to detec t leaks in t he sewe r sy stem. This procedure entails the introduction of smoke candles into the sy stem by way of a manhole near the suspected leak. The smoke from the cand le is forced through the sy stem by a blower a nd Comm issio n employees look for sur face locations such as vents or drain pipes where the smoke emits, evidencing a break in the sewer line.-2-

On January 18, 1993, Commission employees dropped two smoke c andles in

to a manhole at the intersection of Chestnut and Cypress Streets. The reafter, the employ

ees notedsmoke coming outof the basement of a house at 301 Cy press Street and notified the owner. Mary Eula Sloat, the executrix of whose estate isthe Appellee in thi s matter, was in he r house at 308 Cypre ss Street at the time. ( For the sake of simplicity the Appel lee will here inafter be referred to as “ Ms. Sloat.”) Unbeknownst

to the Commission employees, smoke also entered Ms. Sloat' s home through a hole in the sewer line. Ms. Sloat who suffered from chronic obstructive pulmonary disease was overcom

e by the smoke. She was later discovered on the flo or of her

kitchen b y a

neighb or and wa s taken to the hospital where she was placed in the intensive care unit and treated for sever e respira tory distress. Ms. Sloat was removed from the intensive care unit the next day and was discharged from the hospital on January 23, 1993.
In his testimony, Ms. Sloat’s physician descr ibed chronic obstructive pulmonary disease as a combination of emphysema a nd chronic bronchitis and stated that her exposu

re to the smoke in her homeon January 18, 1993, accelerated the progress of the disease and deter iorated the mental and physical quality

of her life:
She was practically

housebound. She was rarely able to make an office visit. Her

-- she was e

xtremely anxious to the point that , that the low dose of Xanax was q uadrupled. She -- her demeanor chang ed. There were no more jokes an d laughi ng. She was no t her usua l self any more. She

was a pe rson that I would describe as constantly being afraid, afraid that she would lose her bre ath at any time.... She deteriorated into a human being w

ho would si

t on the couch and h old herself and, and just shake and do constant pursed lip breathing

. On Novembe

r 23, 1993 , Ms. Sloat fil ed a comp laint ag ainst the T own of Gr eeneville ass erting that the smoking of the sewers without warning to reside nts in the area co nstitute d negligence

and that she sustained personal injuries as a result of bei ng exposed to the smo ke. By agreed order entered January

21, 1994, the complaint was amended to change the defe ndant to the Water and Light Commission of the Town of Greeneville with such amendment relating ba ck to the time of the filing of the original complaint. Additionally , by amended c omplaint fil ed in May of 1996, Ms. Sloat also added Roto-Rooter S ewer Drain Service and Superior Signa l Company, the manufacturer of the smoke candles used in smoking the sewer, as defendants in the case.
Ms. Sloat died from chronic ob structive pulmonary disea se on January 27, 1997, and an or der was entered substituting Linda L aws, executrix of the estate of Mary Eula Sloa t as plaintiff in the case.
Ms. Sloat's c omplaint a gainst Superior Signal Company, I nc. was dismissed upon settlement prior to trial and a voluntary non-suit was taken as to Roto-Rooter Sewer Drain Service.
After trial of t he case in March and April of 2002 theTrial Court filed its opinion finding that Ms. Sloat ha

d sustaine d damag es in

the amount of $80,000.00 with ninet y pe rcent of the faul t-3-

attributa ble to the Commission and ten percent of the fa ult attrib utable

to Su pe ri or Si gn al Co mp an y, Inc. Pursuant t

o these findings judgment was entered ag ainst the Commission in the amount of $72,000.0 0 and, the

reafte r, the Comm

ission file d this appe al.
The issue s presen

ted for our revie

w are re stated a s follows:
1. Whether the Commission is immune from liability upon gr ounds that

it was eng aged in th e n eg li ge nt in sp ec ti on of pr op er ty.
2. Whether the Commission is immune from liability uponground s that the d ecision n ot to warn residents of the sewer smoking proc edure is a discretionary function.
3. Whether it was established by a p reponderanc e of evidence that the Commission negligently

breached a duty

to warn.
4. Whether

a warning would h ave pre vented Ms . Sloat'sinjuries.
5. Whether the Superior

Signal Company I

nc. should have been assessed with more than ten percen t of the fa ult for Ms. Sloat's injuries. Our standard of review in this non-jury case is de novo upon t he reco rd of t he pro ceedin gs below and there is no presumption of correctness with respect to the Trial Court's conclusions of law. Campbell v. Florida Steel Corp. , 919 S.W.2d 26 (Tenn. 1996) and T. R.A.P . 13(d ). The Trial Court 's factual f indi ngs are, however, presumed to be corr ect and we must affirm such findings absent evidence preponderating to the contrary

. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87 (Tenn. 1993). The first issue we address is whether the Commissionis immune from liability upon grounds th at it wa s e ng ag ed in th e i ns pe ct io n o f p ro pe rt y. That portion of the Governmental Tort Liability Act embodied at

T.C.A. 29-20-205 provides that "[i]mmunity from suit of

all governmental entities is removed for injury proximately caused by a neglig ent act o r omission of any employ ee within the scope of his employ ment..." However, at subsection (4) the s tatute

excepts this removal of immunity if the injury complained of arises out of " a fai lure tomake an inspection, or by reason of making an inadequate or negligent inspection of any property."
The Commission asserts that any warning that might have been given regarding

the smoking of the sewers "would clearly have been given as part of the inspect ion process and would be an integral part of th at proce ss." Thu s, the Commi ssion cont ends that , in asser

ting tha t there w as a negligent failure to warn her of the smoking of the se wer "Ms. Sloat is essentially c laiming that the method of inspecting the sewers was neg ligent." The Commission argues that “the allege d duty

to warn and the inspection are not indepe

ndent or m

utually exclusive

events” and that “ if

not for the inspection of the sewers, Ms. Sloat would not be claiming any nee d to warn.” Accordingly , the-4-

Commission maintains that it should retain its immunity under the exception set forth at subsection (4) of the statute.
The Supreme Court of

this state has recognized that the Governmental Tort L iability Act is in derogation of the common law and must, therefore , be strictly construed

. Limbaugh v. Coffee Medical Center , 59 S.W.3d 73 (Tenn. 2001). The exception to the removalof immunity set forth at subsection (4) relates to the failure to make an inspectio n or the ma king of a n inadequ ate inspection. Webster’s New World Dictionary ( College ed. 1966) defines “inspection” as “caref ul investigation; critical examination.” Given the ruleof strict construction applicable in this matter we decline to extend the definition of “inspection” to include the warning of an inspection. “I f the words of a statu

te plainly mean one

thing th ey ca

nnot be given another meaning by judicial construction.” Henry v . Whit e , 250 S.W.2d 70 (1952). Any warnin g o f inspection, if compelled, would have be en compe

lled by the fac t of the ins pection; however , it does no t follo w that such warning would have been an element o f the insp ection. A warning would have been incidental to, rather than intrinsic to, the inspection. It is our finding that an inspec ti on and a warning of an inspection are independent events and, accor dingly, the Com mission’s argument for retention of immunity under T. C.A. 29-2 0-205(4) is without me rit.
The next issue we address is whether the Commission retains immunity for its failure to warn residen ts of the sewer smoki

ng proc edure up on grou

nds that the decisi on of whe ther to wa

rn is a discretionary f

unction.
T.C.A. 29-20-205(1) provid es another exception to the removal of immunity f rom suit of governmentalentities for injur ies arising out of “th

e exerci se or per

formanc e or the f

ailure to exercise or perform a discretionary function, whether or not the discretion is abused; ...”
In Bowers v. City of Chattanooga , 826 S.W.2d 427 ( Tenn. 1992) our Supreme Court provides guidancein dete

rmi ning which activities fall within the scope of “discretionary function” by adopting a “planning-operational test.” U nder this test, policy making or planning decisions are deemed to be disc

retiona ry and will no t subject a

gover nmental e ntity to tort liability ; however, a governmentalentity

will be subject to liabilit

y f or decis ions that a

re mere ly operational. At page 431 of Bowers

the Court s tates as f

ollows:
Under the plan ning-operational test, discretionary function immunity does notautomatically attac

h to all acts invo lv ing choice or judgment. Such an analy sis recognizes that, to some extent, every act involves discretion. Rather, the underlying

policy of g overnmental immunity is better served by examining (1) the decision-making process and (2) the propriety of judicial r eview of the resulting decision. Cf. Peavl

er, 528 N.E.2d at 46 (examining the natur e of the c onduct, it s effect on govern mental ope rations, and the capacity of a court to evaluate the decision). A consideration of the decision-making proce ss, as well as the factor s-5-

influencing a particular decision, will often reveal whether that dec ision is to be viewedas planning or op eration al. If a particular course of conduct is determined after consider atio n or deb ate by an individual or g roup charged with the formulation of plans o

r policie s, it st rongly sug gests the result is a planning decis ion. These decisions of ten result from as sessing prioritie s; alloca

ti n g resourc es; developing polic ies; or es tablishing plans, specificat

ions, or sc hedules. See id.
On the other hand, a decision re sulting f rom a d etermination based on preexisting laws, regulations, policies, or s tandard s, usually

indicate s that its maker is performing an opera tional act. Similarly operational ar e those ad hoc decisions made by an individual or g roup not charged with the de vel opment of plans or policies. These operational acts, which often implement pri or planning decision s, are not " discreti onary function s" within

the meaning of

the Tennessee Governmental Tort Liability Act. In other words, " the discretionary function exception [will] not app ly to a claim that government

employ ees fai led to com

ply withregulations or policies designed to guide th eir actions in a particular situatio n." Aslakson v. United S tates, 790 F.2d 688, 692 (8th Cir.1986). Another factor bearing on whe ther an act should be considered planning or operational is whether the decision is the ty pe properly

reviewable by

the courts. The discretionary function exception "recog nize s that cou rts are i llequippedto investig ate and balance the numerous factors that go into an executive or legislative decision " andtherefore allows the government to oper ate without undue interference b y the courts. See Wainscott v. State, 642 P.2d 1355, 1356 (A la sk a 1 98 2) . P ut su cc in ct ly: [T]he judi ci ary conf

ines itself ... to adjudication of facts based on disc ernibl e objective standards of law. I n the context of tort actions ... these objective standards are notably lacking when the q

uestion i s not negligence

but social wisdom, not

due care but

political practicability, not [reasona bleness] but economic expediency. Tor tlaw simply furnishes an inadequa te crucible for

testing the merit s of socia

l, politica l, or eco nomic decision s. Peavler , 528 N. E.2d a t 44-4 5 (quo ting Blessing v. Unite d States, 447 F.Supp. 1160, 1170 (E.D.Penn.1978)).
In seeking to determine whether the matter now before us involves a discretionary function we specifically note

in Bowers

the Court’s recognition of the importance of examinin g the pr

opriety of judicial review of the decision in question. In particular, we note the above language cited from the Peavler case which indicates that judicial review is prope r ly releg ated to matters involving objective standards and is not appropriate “when the question i s not neg ligenc e but soci al wisdom, not[reasona

bleness] b ut econom

ic expedie

ncy .” However, the

questions which ar

ise in the present-6-

case with respect to the Commission’s decision not to warn residents of the sewer smoking procedureare not primarily que stions of social wisdom and economic expedienc y but rather questions of negligence and reasona bleness which entail an assessment of the risk of injury involved and th e feasi bili ty of iss uing an effect ive wa rning.
The Commission contends that Ms. Sloat’s argument is that there should have been

a policy of warn ing res idents when the sewer was to be smoked. The Commission asserts that “a decision to have a policy

of expending time and resources in send ing out warnings to residents within a several block ar

ea is a planning decision and not an

operati onal dec ision.” Ms . Sloat disa greeswith this categ orization a

nd contends that, in fact, ye ars bef ore the i ncident c omplaine d of in this case the Commission had a pra

ctice of warning residen ts when the

sewers w ere smok

ed. She c ites Bowers, ibid. for the propositio n that a “decisi on result

ing fro m a deter

mination ba sed on pre

existing la

ws, regula tions, policies, or standards, usually indica tes that its maker is performing an operational a ct.” Ac co rd in gl y, Ms. Sloat a

rgues t hat the Com

mission’s f

ailure to follow its practice of notification on January 18, 1993, was an ope rational decision.
In Chase v. City of Me mphis , 971 S.W.2d 380 (Ten n. 1998) th

e administ

rator of the esta te of the victim

of a fat al attac k by two pit bull dogs sued the City of Memphis. Severa l months prior to the attack the pit bulls had mauled a dog belonging to the victim and the City animal shelter had conducted

a heari ng t o deter mine whether the pit bulls were vicious. It wa s determined at that hearing that, although the dogs were not vicious, they were

dangerous and

the shelter issued a letter ordering their owner to cor rect an y f encing deficie ncies ar ound the dogs and

to enroll t

he dogs in obedience training school. The letter further provided that, should the order not be complied with, the dogs would be declared vicious and would be seized. Subsequent inve stiga tion by the shelter revealedthat the owner had not enrolled the dogs in obedience school as ordered. He assured t h e shelter that he would do so; however, he never did and the animal shelter failed

to monitor the matter to insure his compliance. Thereafter, the fa tal attack took place.
The record in Chase did not show whether the animal shelter had established a procedure for picking up animal s design ated as d anger ous that ha

d been re le a sed contingent upon their owner’s compliance with anorder issued by the shelte

r. The Cou

rt noted th at the g overnme nt tort lia bility act would have provided

i mmunity had the shelter followed a n established policy of picking up animals upon violations of its orders. However, as noted by the Court at page 384 of its opinion:
A negligent act or omission is operational in nature and not subject

to immunity when the act

or omission occurs: (1) in the absence of a formulated policy guiding the conduct o

r omission; or (2) wh

en the co nduct d eviates f rom an established pl an or po li cy. The Court found that the shelte r’ s failure to impound the dogs was a neglig ent act or omission in the absence of a formulated policy and was, therefore, operational in nature. In the case sub judice it appea

rs that ei ther the re was n o formula

te d policy with resp ect to wa

rning r esidents when the s ewers were smoked, or, if there was a policy that residents be warned, it was deviated-7-

from on January

18 , 1 99 3. In e it he r i ns ta nc e, as di ct at ed by Chase, the Commission’s failure to warn was operational in nature and not immune under T.C.A. 29-20-205.
The next issue w e addre ss is wheth er ther e is a pre pondera nce of e vidence in this cas e showing that the Commission h ad a duty to warn r esidents that the sewers were to be smoked. The Commission contends that there was no such du ty b ased upo n proof th at it had been smoking sewers for thirty y ears prior to the date in question and had never r ece ived a complaint of injury. The Commission also noted testimony of the president of the Superior

Signal Company to the ef fect that smoke from testing enters less than one percent of house s tested and noted that Superior Signal had notsuggested advance notice to residents. In support of its argume nt thatit had no duty to warn, the Commission relies upon Basily v. Rain, Inc. , 29 S.W.3d 879 (Tenn. Ct. App. 2000).
In Basily the pla intiff sued the owners and managers of the apartment complex where she lived along with a company retained by the

complex to maintain its irrigation system , for inj uries she sustained when she tripped o ver a protrudi ng water sprinkler located on the g rounds of the co mplex. Th e p la in ti ff

al le ge d t ha t t he ir ri ga ti on ma in te na nc e c om pa ny h ad ne gl ig en tl y left th e sprinkler in a protruding position after winterizing the irriga tion system and

tha t the apartment complex had negligently

failed to discover this problem. The plaintiff argued that both the a partment complex and the irrigation mainten ance company were ne glige

nt in faili ng to issu e a war ning to residents of the complex that maintenance was to be performed on the irrigation syste

m. This Court d

etermine d, that, under the f acts in Basily, a warning was not requi red bec ause neither the irrigationmaintenance company nor the apartment complex should have been expected to anticipate that winterizing the system would cause a n unreaso nable ri sk of har m. In r eaching this determination the Court noted un con tradicted testimony of the pr esident of the irrigation maintenance company that sprinklers like the one over which the plaintiff tripped rar e ly f ailed to retrac t, that he wa s not awa re of an yone ever t

rip ping over a sprinkler head and that there wa s no standardin the industry which called for the inspection of sprinkler heads after winterization. The Courtalso noted testimony that the apartment c omplex was unaware of any reports of any one having tripped over a sprinkler at the complex. The Court found no evide nce “tha t either p arty

should reasona bly have anticipated

that winterizing the irrigation sy stem could create an unreaso nable ri sk of harm to persons living in the apartment complex.”
The Commiss ion asser

ts that in the instant case it would have been rare for smoke to enter a residence and there

was no proof of a prior injury from exposure to smoke as a result of smoking the sewers for

a period of thirty ye ars prio

r to Januar

y of 1993. The

Commission c ontends th at these circumstances are analogous to those in Basily and that w e should find no duty to warn just as we found no such duty in Basily. We disagree. Sp ec if ic al ly, the Court

in Basily held that neither defendant was required to give warning of the winteriza

tion of the

irriga tion sy stem bec ause nei

ther “sh ould have

been expe cted to a

nticipate that winterizing the irrigation sy stem would create an u nreasonab le risk of harm.” In Basily, no proof was pre sented th at the defendant s should have been aware that winterizing the irrigation-8-

system could result in the dangerous condition which caused the plaintiff’ s injuries. In the case now before us; however, testimony of the Commission’s own employ ee s constitut es proof

of their aware ness that smok ing the s ewers p resente d a reas onable r

isk of har m to a resi dent such

as Ms. Sloat. In this regar

d we refere nce the fo llowing testimony of Kenne th Earl, superintendent of operations for the Commission: Q. All right. Now prior to January of 1993, you certa

inly knew, as y

ou already told us, that there was a potential for smoke from the sewer system to b e int ro duc ed int o the d we lli nghou se s, d

idn ’t y ou? A. Yes, Sir. Q. And y ou also kne

w that i f those dw ell ing houses were inhabited, that there was cer tainly potentia l for the inhabitan

ts to brea th that smok

e. Corre ct? A. Well, sure. Q. All rig

ht. Common se

nse will te

ll yo u that, wo n’t it?
A. Yeah. Q. And you know, as y ou told me in depositio n, that tha

t’s espe cially

true -- no, strike that. Let

me back u

p. You als o knew tha

t there w as a pote

ntial dan ger to human beings from breathing the smoke, didn’t y ou? A. It’s on a ciga

rette pack. Q. So you know about the dang er of breathing smoke?
A. I’m s orry . That’s w

hat it say s there. This smoke just like a

ny other smok

e is dangerous to breathe, y

es, Sir. Q. All righ

t. And y ou knew, d

id you not, prior to January of 1993 that that was especia lly t rue for a person who had pr

eexisting respira tory or lung p roblems? A. Well, I guess, there a

gain, it’s common knowledge, just common sense.
In addition to the testimonyof Mr. Earl, James Collins, an employee with the Commission for twenty five y ears, te stified th at, on pri or occa sio ns, he had wi tnessed smoke entering houses during the sewer smoking procedur e.
As recognized by

our Supreme Court in McClenahan v. Cooley , 806 S.W.2d 767 (Tenn. 1991), one of the elements which must be estab lished in orde r to sustain a cause of action for-9-

common law neg ligenc e is what w as forme rly calle d proxima

te cause, and is now denominated causation in fact. Waste

Managem ent v. Sou th Central B ell, 15 S.W.3d 425 (Tenn. Ct. App. 1997). Noting that, in pr

oving pr oximate ca

usation, itmust be shown that “the harm giving rise to the action could have reasonab ly been for eseen or anticipated by

a person of ordinary

intelligence and prudence”, the Court states as follows at page 775:
The forseeability r

equirement is not so strict as to require the tortfeasor to forsee the exact manner

in which th

e injury takes pla ce, prov ided it is determined that the tortfeasor could foresee, or through t h e exerci se of re asonable diligence should have fores een, the gen

eral man ner in wh ich the in jury or loss oc curred . ... I

t is sufficient that harm in the abstract could be reasona bly foresee

n. The Commis si on asser

ts that the re had been no rep orts of inj uries pr ior to the incident i n question. Had there been such reports they would, of course, have constituted persuasive evidence t hat the incident complained of was foreseeable. How ever, the absence of such repor ts does not thereby pr

eclude the forseeability

of such an incident. The referenced testimony of Commission employees indicate s that “harm in the abstract could be reasonably foreseen” in this case.
The next issu e we add ress i s whet her a wa rning, if given, would have prevented Ms. Sloat’s injuries. The Commission argues that there was no evidence pr esented at trial as to what would have constituted an adequate warning and, without provi ng the ty

pe of wa rning th at was required, M s. Sloat cannot prove that the warning would have prompted he r to evacuate her residence

. The Commission h

ypo thesizes th at a

warning could have been issued “that the smoke from the sewer testing was very hazardous to anyone with lung problems and those persons sho uld evacua te their residence and not return for a se t period o f time.” However, the Commission maintains that there was no proof in the r ecord that would have caused it to issue that level of warni ng. We are compelled to disagree based up on the pre

viously referenced testimony

of Mr. Earl wherein he admits that prior to January of 1993 he was aware that smoke could enter houses during the smoking p

rocedur e, that there wa s potential danger to human beings from breathing the smoke and that this was especially true for individuals with preexisting respiratory pro blems. It is our determination that this knowledge was certainly sufficient to prompt issuance of the warning posed by the Commission.
The Commission also notes the testimony of Mr. Collins to the effect that several y ear s before January

of 1993 he

had war ned resi dents whe

n the smoki ng proc edure w as about t o take place by knocking on their doo

rs and telling the

m that they

had a pro blem if smo

ke got in the house. The Commission maintains that, e ven if this warning had been given, Ms. Sloat would not have evacuated her house. The Commission bases this argument on the acknowledgment of her phy sician that Ms. Sloat admitted to him that, as of January 18,1993, she was still smokingcigarettes “a little bit.” We do not ag

ree tha t the fac t that Ms. Slo at was sti ll smok ing cigarettes warr ants the conclusion that she w ould not have evacuated her home upon being a dvised that smoke might enter her home as a result of the sewer smoking proce dure. It does not follow from the fact that Ms. Sloat-10-

was willin g to inha

le ciga rette smoke in known quantities and composition in a manner under her absolute control that she would consent to expose herself to s moke of un known quantity and compositio n emanat

ing fro m a sewer

sys tem.
The Commission states that the Trial Court made no findi ngs of fact as to “the ty pe of the warning and expressed no opinion as to the warning that allegedly should have been given.” In fact the Tria l Court sta

tes in its op inion of Ap

ril 5, 2002 , as follo ws: This court

is of the opinion that the Water and Light Commission of the Town of Greene villewas negligent by

smoking this sewer line and fai ling to wa

rn Ms. Sloat and the other individuals that lived in houses serviced by this sewer line, of the hazards that could be a ssociate d with this s moke to pe rsons tha t lived in houses serviced by

this sewer line, and particularly persons that suffered

with lung problems or brea

thing dif ficultie s. The obvious minimal warning to residents that would have been sugg ested by the Commission’s knowledge as evidenced by the Mr. Earl’s testimony was a war ning that the sewers were being smoked, that smoke might enter the resident’s house and that, if thesmoke did enter the house, breathi ng it cou

ld prese nt a dang er, especially

to person ’s wit

h res piratory

problems

. Alth ough Ms. Sloat died without giving testimony in this case we must assume that she would have acted with due care for her ow n safety a bsent evidence to the contrary

. Green v . City of Kno xville 642 S.W.2d 431 (Tenn. Ct. App. 1982) and Jeffreys v. Louisville & N.R. Co. , 560 S. W.2d 920 (Tenn. Ct. App. 1977). Given Ms. Sloat’s medical condition, it is our determination that, had she been given the minimal warning called for under the circumstances, exercise of due care would have dictatedthat she e

vacuate her house and, in so doing, she would have avoided the injury which she incurred.
The final issue we address relates to the a pport ionment of damages in this matter. The Commission contends that the Trial Cou rt erred in apportioning ninety percent of damages to the Commission and only ten percent to Superior Signal Company . The Commission argues that this a pportionmentshould be reversed with ninety percent of damages being apportioned to Superi o r Signal and ten percent to the Commission based upon the “ superi or knowledge” possessed by Superior. I n support of this argument the Commission asserts that, while it had received no complain ts of injury due to smoke inhalation in connection with the sm oking of sewers, Superior Signal had rec eived co mplaints in that regard. The Commission also notes that Superior Signal had prepared the following proposed warning as par t of a brochure it had designed but that the war ning which was not enclosed with the smoke candles used by the Commission: To Whom It May

Concern:
Please be informed that the Sewer Operating Committee wi ll be testing lines in this area on (insert date) by

the use of smoke. The smoke should not enter your home unle ss a leak

is prese nt.-11-

The presence of smoke

in your house should be re ported immediately to the men conducting the tests, or by calling (insert telephone number).
Avoid unnecessary

exposure to the smoke. The smoke is relatively har mless but may be irritating to nasal pas sages. However, any smoke irritation will be temporary a

nd should quickly disappear a fter exposure has ceased.
Alth ough the Commission was not provided with the proposed warning set forth above the record shows tha

t each sm oke can dle car

ried the following

label:
Handle with care. Do not use near flammables. After ignition, place in pai l or container. All smoke, including Superior, can initiate breathing damage without respiratory

protection.
Even though the Commission was evidently unawa re of prior injuries attributable to the smoke, it admittedly knew that the smoke

posed a p otential d anger , partic ularly to individu als with respiratory

pr o blems. The fact that Superior had received a ctual reports of smoke related injuries is insuffic ient to sup

port a re apportio nment of d amage s given t he knowle dge pos s esse d by the Commission and the a

dditional f

act that t he Commissio n was in a

much bett

er positio n to warn

Ms. Sloat and other

residen ts in the ar

ea of the releva nt dang er. The

trier of fact is accorded a grea

tdeal of leeway in its alloc ation of f

ault. Wrigh t v. City of

Knoxville , 898 S.W.2d 177 (Tenn. 1995). Our review of the record does not convince us that the evidence preponderates against the Trial Court’s determination with respect to the apportionment of damages between the Commission and Superior.
For the fore going

reasonsthe judg ment of the Trial Cour

t is affir med and th

e case i s remanded for collection of the judgmen t and cost s below. Co sts of appeal are adjudged a gainst the Water and Light Commission of the Town of Gree neville.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE