# FILED July 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

ROBERT E. WALL, ) ) Plaintiffs/Appella

nt, ) Henry Law No. 529

) vs. ) ) Appeal No. 02A01-9707-CV-00166 CITY OF PARIS, TENNESSEE, ) and DIANA PIERCE d/b/a ) DIANA’S LIMITED also known ) as DIANA’S, ) ) Defendants/App

ellees. )

APPEAL FROM THE CIRCUIT COURT OF HENRY COUNTY

AT PARIS, TENNESSEE

THE HONORABLE C. CREED McGINLEY, JUDGE

For the Plaintiff/Appellant : For the Defendants/Appellees : Michael A. Jayne

s Fred N. McLean D. Tyler Kelly Paris, Tennessee Charles L. Trotter, Jr. Jackson, Tennessee
AFFIRMED

HOLLY KIRBY LILL

ARD, J.
CONCUR: ALAN E. HIGHERS, J. DAVID R. FARMER, J.OPINION

The plaintiff in this

case tripped and fell on a

city sidewalk. After a bench trial, the trial court found that the sidewalk was not dangerous or unsafe under the Tennessee Gov ernmental Tort Liability Act. We a

ffirm. On March 15, 1996, Mr. Robert E. Wall (“Wall”) tripped and fell as he was walking along the sidewalk of North Poplar Street in Victorian Square, Paris, T ennessee. Wall, an 82-yea r old retiree, suffered a

broken arm and la

cerations to his ha

nds and face as a

result of the fall . Wall

filed suit under the Tennessee

Governmental Tor

t Liability Act aga

inst the city of Paris (“City”). Under Tenne ssee Code Annotated § 29-20-203 (1980 & Supp. 1997), Wall alleged that the City wa s negligent in maintaining the sidewalk, and that it was unreasonably defective, unsafe , and dangerous. After a bench tr

ial, the trial cour

t dismissed the acti

on. From this decisio

n, Wall now appea

ls. On appeal, Wall argues that the trial cour t erred in finding

that the sidewalk w

as not a in

a defective condition at

the time of the acc

ident. We review

the trial court’s

findings of fact de novo , witha presumption of correctness, unless the preponderance of the evidence proves otherwise. Tenn. R. App. P. 13(d); Metropolitan Gov’t v. McKinney , 852 S.W.2d 233 (Tenn. App. 1992). Th e presumption of correctness does not apply to the trial court’s conclusions of law. Tennessee Farmers Mut. Ins. Co. v. American Mut. Liab. Ins. Co. , 840 S.W.2d 933 (Tenn. App. 1992). Tennessee Code A

nnotated § 29-20-

203(a) provides

in pertinent part: Immunity from suit of a governmental entity is removed for any injury caused by a defective, unsafe, or dangerous condition of any . . . sidewalk . . . owned an d controlled by such governmental entity. To recover

under Section 29-20-203, the plaintiff must prove, by a preponderance of the evidence, (1) that the City owned and controlled the premises; (2) that the premises were in a defective, unsafe,

or dangerous condition; and (3) that the City had constructive and/or actual notice of the defective, unsafe, or dangerous condition of the premises. Burgess v. Harley , 934 S.W.2d 58, 63 (Tenn. App. 1996). The parties stipulated that the City owned and controlled the sidewalk, and that the City had notice of the condition of the sidewalk. The case turned on whether the sidewalk where the accident occurred was defective or dangerous. The record showed that the sidewalk at issue had been patched. It is undisputed that the sidewalk was scheduled

for replacement

at the time of the accident, and was replaced shortly after the accident. Wall argues that this proves that the area was dangerous or defective. The City argues that the sidewalk

did not not present a danger to someone exercising ordinary care. After a bench2

trial, the trial cour t found th at the area of the sidewalk where Wall fell was patched but was not defective. Testimony established that the patch did not create a raised o r depre ssed area. When questioned about the spot wher e he fell, Wall wa

s unable to point to a

specific feature about thearea that caused the f

all: Q: Was t here any partic ular thing that you r

ecall about this po

rtion of th

e sidewalk that con

tributed to your tri

p and fall that you’ ve told us about? A: (The witness shook his he ad) I don’t reme

mber, Michael. I j ust know I walked four or

five steps and I caught my right foo t and I went forwa

rd. That’s all. I didn’t see anything. After reviewing the record, which includes testimony about the sidew alk as well as photographs,

we find that the evidence does not preponderate against the trial court’s finding tha t the sidewalk was not defective. Consequently, the trial court’s dismissal of the plaintiff’ s lawsuit is affirmed. The City requests that this appeal be deemed a frivolous appeal under Tennessee Code Annotated § 27-1-122. This request is denied. The decision of the trial court is affirmed. Costs are taxed against the Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J.
CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.