1

The plaintiff's complaint against the defendants Finch was dismissed by

the trial court, which ruling was not appealed by the plaintiff.

FILED

September 30, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS

AT KNOXVILLE

MARGIE E. SPARKS, ) KNOX CIRCUIT 

 ) C.A. NO. 03A01-9803-CV-00092

 )

 Plaintiff-Appellant )

)

 )

vs. )

 ) HON. DALE C. WORKMAN 

 ) JUDGE 

)

 )

KNOXVILLE UTILITIES BOARD, )

 )

 Defendant-Appellee ) AFFIRMED AND REMANDED

 

BARBARA W. CLARK, Moore & Clark, P.C., Knoxville, for Appellant.

T . KENAN SMITH, Hodges, Doughty & Carson, Knoxville, for Appellee.

O P I N I O N

McMurray, J.

This case arose from an accident wherein the plaintiff, Margie

E . Sparks, fell when she stepped on a water meter cover located on

the property of Kelsey and Cynthia Finch and allegedly controlled

and maintained by the defendant, Knoxville Utilities Board (KUB). 1
2

After a bench trial, the court found that the plaintiff had failed

t o prove KUB guilty of any negligence and dismissed her action.

This appeal resulted. We affirm the judgment of the trial court.

The issue before us, as framed by the plaintiff, is whether

she "proved by a preponderance of the evidence that the grass,

roots and dirt accumulated around and within the meter w ell ,

causing the lid to become loosen[ed], thereby resulting in her

falling into the well." Our review is de novo , accompanied by a

presumption of correctness of the trial court's findings of fact,

unless the evidence preponderates otherwise. Rule 13(d), Tennessee

Rules of Appellate Procedure. 

The plaintiff testified that she was mowing the lawn and when

she stepped on the meter cover, it flipped and she fell into the

meter well. When asked whether anything was wrong with the cover,

plaintiff responded as follows:

A : I can't tell you what is wrong with the lid other than it

flipped and I fell in it. I am not an expert to tell you

what is wrong with the lid. I can tell you the lid

didn't fit.

Q : I s there anything wrong with the well itself? Can you

tell me anything wrong, any defect, any crack, any--

A : Sir, I am not an expert with that lid or the meter or the

w ell itself. I didn't even know it was cal led a wel l

until you said so. 

Q : But you don't have any testimony that you can offer to

this Judge today that there was a crack, a defect, or a

break at all in that lid or the well?
3

A : No, I can't say it was a crack or anything. I didn't

examine the well, whatever you call it. All I am saying

i s that it flipped and I went in it and it didn't fit

when we tried to put it back.

The plaintiff's legal theory in this premises liability case

i s tha t KUB was negligent in allowing weeds, grass and roots to

grow and accumulate under the meter cover, thereby causing i t t o

dislodge and become unstable and dangerous to those who might step

o n it. In order to establish negligence, a plaintiff must prove:

(1) a dut y of care owed by defendant to plaintiff; (2) cond u c t

falling below the applicable standard of c are that amounts to a

breach of that duty; ( 3) an injury or loss; (4) cause in fact;

and (5) proximate, or legal, cause. McClung v. Delta Squ are Ltd.

Partnership , 937 S.W.2d 891, 894 (Tenn. 1996), McCall v. Wilder ,

913 S.W.2d 150, 153 (Tenn.1995).

I n a premises liability case such as this one, the plaintiff

must prove, among other things, that he or she was in jured by a

dangerous or defective condition on the defendant's property. Cf.

Hardesty v. Service Merchandise Co., Inc. , 953 S .W.2d 67 8, 682

(Tenn.A pp. 1997 ) ("In order to prevail against the owner or

operator of a premises for negligence in allowing a d angerous or

defective condition to exist on t he premises, the plaintiff must

establish (1) that the defendant created the condition or (2) that

the defendant had actual or constructive notice of th e condition

prior to plaintiff's injury.") 
4

The ac cident o ccurred on October 21, 1995. The plaintiff

pre sent e d the testimony of Randall Skeen, KUB's construction

foreman, who responded to the s ervice c all regarding the meter

after the accident. Skeen stated that he examined the meter cover

and well shortl y after the accident and found everything "okay"

with no noticeable defects in either. He testified that he d i d

remove some grass and roots underneath the co ver, but that they

did not in any way impede the co ver from sitting firmly and

secure l y on the well. Skeen testified that KUB was responsible

for the maintenance of meter wells. 

The plaintiff also prese nted th e testimony of James Sheets,

a n investigator with Appalachian Claims Service. Sheets conducted

a n investigation of the accident for KUB on October 23, 1995, two

days after the accident. S heets testified that he examined the

meter well and cover, and took eight photographs of the area. He

stated that nothing had been done to the meter prior to his taking

the pho tographs . These photographs are included in the record

before us. Sheets testified that some grass had grown up between

the cover and the well, bu t that t he grass did not in any way

affect the stabi lity of the cover and how it sat on the well.

Sheets st ated that the cover sat "squarely and firmly" on the

well. 
2

In this testimony, Thomas is referring to the roots apparent in one of the

photographs taken by Sheets two days after the accident.

5

The plaintiff also presented the testimony of Samuel Thomas,

Jr., the owner of a lawn care and landscaping business. The court

qualified Thomas as an expert in the field of lawn care. Thomas

exa min e d the accident site in October of 1997, some two years

after the accident. He testified that he "just observed the type

o f grass that was there surrounding or aro und the meter base

itself" and that it was mainly Johnson grass. Thomas testified as

follows regarding the characteristics of Johnson grass:

A : And it has a matty — it tends to mat, like clumps, and it

will move, it will move — there is a possibility that it

could — I don't know if I should say this — it can raise

this — it gets under things and it pushes it up. The

mattiness of it is very strong and very tough, so it has

a tendency to move things out of its way.

Q : So it can grow up and push the lid up?

A : It can grow up and push the lid up, yes.

Q : Are these virgin roots, this Johnson grass, is it virgin?

A : Oh, no. No. They have been there for quite some time. 2

Q : When you say quite some time, bas ed on your expertise,

how long, in your opinion, will this condition exist with

the roots and —

A : I would say at least approximately two years, 18 months

to two years. 

Thomas testi fied on cross-examination as follows regarding

his observation of the accident scene:

Q : Now, in regard to the lid itself, you did not lift

it up on either occasion?
6

A : No, sir, I did not.

Q : You did not examine the lid and you did not 

examine the well itself?

A : No, I did not.

Q : You can't identify any type of de fect 

whatsoever in the well or the lid?

A : No, I did not do any physical approaches at all on

the lid.

W e are of the opini o n that Thomas's testimony is not

suffic ien t to shed any light on the probable cause or cause-infact of this accident. His investigation, two years afte r t h e

accident, bears very litt le re levance on the question of whether

the meter cover and well were in a defective or dangerous condition at the time of the accident. Regar ding the existence of

grass growing between t he cover and well, Thomas did not testify

t h a t the grass was in any way causally related to the stability,

or lack thereof, of the meter cover. 

KUB did not present any evidence to the trial court. KUB did

attempt to impe a c h the credibility of the plaintiff, and argued

that the plaintiff's injur y d id not come from stepping on the

meter cover, but from some other cause. It is thus apparent from

the record that credibil i t y was an important factor in deciding

this case. Al though the trial court did not make specific

findings regarding credibility, it clearly placed more weight upon

the testimony that the lid was not affected by the grass and that
7

i t sat se c u rely on the well, than the plaintiff's testimony.

"Where t he issue for decision depends upon the determination of

credibility of witnesses, the t ria l court is the best judge of

credibility, and its findings w ill be given great weight."

Gotwald v. Gotwald , 768 S.W.2d 689, 697 (Tenn. App. 1988). "On an

issue which hinges on witness credibility, [the trial court] will

not be reversed unless, other tha n t he oral testimony of the

witnesses, there is found in the record clear, concrete and

convi ncing e vidence to the contrary." Tennessee Valley Kaolin v.

Perry , 526 S.W.2d 488, 490 (Tenn. App. 1974).

Given our deference t o the trial court's credibility

determinations and the lack of evidence regarding the issues o f

probable cause and whet her t he meter was defective or dangerous,

w e feel the evidence does not preponderate against the judgment of

the trial court. The court's decision is affirmed in its entirety

and the case r eman ded. Costs on appeal are assessed to the

appellant. 

________________ ___ ______ _

Don T. McMurray, Judge

CONCUR:

___________________________________

Houston M. Goddard, Presiding Judge
8

___________________________________

Herschel P. Franks, Judge
IN THE COURT OF APPEALS

AT KNOXVILLE

MARGIE E. SPARKS, ) KNOX CIRCUIT 

 ) C.A. NO. 03A01-9803-CV-00092

 )

 Plaintiff-Appellant )

)

 )

vs. )

 ) HON. DALE C. WORKMAN 

 ) JUDGE 

)

 )

KNOXVILLE UTILITIES BOARD, )

 )

 Defendant-Appellee ) AFFIRMED AND REMANDED

 

JUDGMENT

This appeal came on to be heard upon the record from the

Circu i t Co urt of Knox County, briefs and argument of counsel.

U pon consideration thereof, this Court is of the opinion tha t

there was no reversible error in the trial court.

The court's decision is affirmed in its entirety and the case

remanded. Costs on appeal are assessed to the appellant. 

 PER CURIAM