# FILED March 7, 2000 Cecil Crowson, Jr. Appellate Court Clerk 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

RAY GABRIELLE COX ) E1999-01697-COA- R3-CV ) Plaintiff-Appellee ) ) Appeal as of Right from the ) ANDERSON CO. CI RCUIT COURT v. ) ) ) ANDERSON COUNTY HIGHWAY ) DEPARTMENT and ANDERSON ) HONORABLE JAMES B. SCOTT, JR., COUNTY, TENNESSEE ) JUDGE ) Defendants-Ap

pellants )

DISSENTING OPINIO N
I dissent from the ma

jority opinion

affirming the ju

dgment of the Tr

ia l C ourt awarding compensatory damages of $130,000.From my review of the record, Plaintiff did not meet herburden of

proving that Defendant had notice of the condition of the roadway , and therefore I would reverse th

e judgment of the

Trial Court. I agree with every as pect of the majority opinion except its holding that the notice requirements of T.C.A. § 29-20-203(b) were satisfied in this case. The majority bases its holding
on the testimony

of Mike Ellis, a for

mer Anderson Coun

ty Road Superintendent, who testified that when the state paved the road, it did not widen or regrade the road. The state simply laid asphalt on top of the existing gravel. From this testimony, the Majority make s a finding of fact that

the road, when first paved by the State, narrowed 20 inches at the site of this accident. It is this finding of fact and the resulting holding with which I disagree.

Plaintiff’s expert, Dr. Le

ighton Sissom, testif

ied that the pavem

ent at the accide

nt site narrowed by 20 inches. He also testified that the edge of the pavement at th

at site was crumbli ng, sinking, and had deteriorated from substantial erosion. (“ . . . the shoulder had eroded away, letting there be a major

drop off.”) The record does not reveal how much of the pavement had crumbled, sunk and deteriorated from erosion. Crumbling and erosion, by definition, will reduce the width ofa

roadway. In this case, we do not know whe ther this crumbling, sin

king and erosion

was, in fact, responsible

for the narrowin

g of the roadwa

y by so me or all of the 20 inches at the accident site. The Trial Court made n o findi ng of fact that the roadway as originally constructed was 20 inches
narrower at this site, and I do not

think the proof in the record supports such a finding of fact by the Majority of this Court. I

t is impossible to tell f

rom Dr. Sissom’s tes

timony, or an

ything else

in this record before us, to what

extent the pavement had crumbled, sunk, and deteriorated from erosion. How much had the pavement eroded? How much had the pa veme nt cr umble d? How much had the edge of the

pave ment s unk? How much had

the shoulder eroded? Was this crumbling and erosion responsible

for the narrowing of the roadway by all or some portion of the 20 inches? The record does not supply the answers to these questions. Therefore, I do not see how this Court can find that this roadway as originally constructed narrowed

at this site from 18 feet to 16 feet 4 inches. Nor do I see how this Court c

an find that the ro

adway rem

ains in the condit

ion as originally constructed. Absent this proof, I believe Plaintiff failed to show by a prepondera nce of the evidence that the road
was originally constructed in this defective condition,and that it remained in that condition until the timeof the accident. Therefore, I believe Plain tiff did not meet her burden to show notice to the Defendants.Given the other hold ings of the Majority Opinion, with which

I concur, I

believe this failure is fatal to Plaintiff’s case. See Glover v. Hardeman Co. 713 S.W. 2d, 73, 76 (Tenn. Ct. App. 1985). It

is relevant that th

e Trial Court did

not find that Defendants had notice because the defectivecondition existed from the time the road was originally constructed. The Trial Court’s finding of notice was based upon its determination concerningthe recommendation of installation of guard rails. Th

e Majority h

olds that t

he pr oposal to install guard rails does not provide the statutorily required notice

to Defendants.

I agree. But I disagree when the Ma jority then construes
no tice on the basis of fac ts not proven in the r

ecord or found by

the Trial Court. As

th ere was n o finding of fact by the Trial Court that the road as originally constructed narrowed by 20 inches at

this location, Rule13(d) of Tenn essee Rules of App

ellate Procedur

e is not applicable a nd there is no presumption of the correctness of this finding of fact unless the preponderance of the evi dence is otherwise. In the case now before us, Plaintiff has failed to meet her burden of proving notice by negligent construction of the roadway. The proof here shows only that

the road is 20 inches
narrower at the site. That narrowing could well be from the crumbling, from the sinking, from thesubstantial erosion which has occurred in the roadway over a long period of time, or from all of these
causes. I believe the

Majority mad

e an unsupported l

eap of faith to

arrive at any conclusion about the width of the roadw

ay as orig inally constructed. Accordingly, since Plaintiff has failed to prove by a preponderance

of the evidence an essential element of her case, i.e., that Defendant had notice of the condition of

the roadway

, I would reve

rse the judgment

of the Trial Court.

__________________________________________ D. MI CHAEL SWINE Y, J.