1 Th e pla intiff'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). 12

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 withthe cover, plaintiff responded as follows:
A : I can't tell you what is wrong with the lid other than it flipped and I fell init. 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 withthat 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 amsaying 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 growand accumulate under the meter cover, thereby causing i t t o dislodge and become unstable and dangerous to those who might step o nit. In order to establishnegligence, 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 breachof 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 na premises liabilitycase such as this one, the plaintiff must prove, among other things, that he or she was in jured by a dangerous or defective condition onthe defendant's property. Cf. Hardestyv. Service Merchandise Co., Inc. , 953 S .W.2d 67 8, 682 (Tenn.App. 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 ninvestigator with Appalachian Claims Service. Sheets conducted a ninvestigation 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 testimonyof 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 verytough, 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 : Whenyou say quite some time, bas ed on your expertise, howlong, inyour 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, inregard 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 conditionat 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 anyevidence 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 clearlyplaced more weight upon the testimony that the lid was not affected by the grass and that7

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 credibilityof 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).

Givenour 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 Judge8

___________________________________ Herschel P. Franks, JudgeIN 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 ponconsideration thereof, this Court is of the opiniontha 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