City of Knoxville v. Hargis

• Decision Date: 30 November 1946
• Parties: CITY OF KNOXVILLE et al. v. HARGIS.
• Court: Tennessee Supreme Court

198 S.W.2d 555

184 Tenn. 262

CITY OF KNOXVILLE et al. v. HARGIS.

Supreme Court of Tennessee.

November 30, 1946

Rehearing Denied Jan. 11, 1947.

Error to Circuit Court, Knox County; John M. Kelly, Judge.

Suit by Hazel C. Hargis, administratrix, against the City of Knoxville, Myrtle Brichetto, and others, to recover for wrongful death of plaintiff's decedent. A judgment was entered in favor of plaintiff against named defendants, and on appeal the Court of Appeals dismissed the action as to defendant Myrtle Brichetto and reversed and remanded as to defendant City of Knoxville, and all parties filed petitions for certiorari.

Judgment in accordance with opinion.

On Petition to Rehear.

Wayne Parkey and James P. Brown, both of Knoxville, for plaintiff in error City of Knoxville.

Ben R Winick and Max Morrison, both of Knoxville, for plaintiff in error Myrtle Brichetto.

Donaldson Montgomery & Kennerly, of Knoxville, for defendant in error.

GAILOR Justice.

This suit was filed in the Circuit Court of Knox County, by the administratrix, seeking damages for the wrongful death of her husband, who, while running down a Knoxville sidewalk, struck an awning and died as a result. The tenant of the building to which the awning was attached, the owner of the bilding Myrtle Brichetto, her husband, and the City of Knoxville, were made defendants to the suit. The tenant and the husband of the owner have been dismissed, so that there remain as parties, the plaintiff administratrix, and the defendants, the owner of the building and the City of Knoxville.

The only question is one of legal liability and there is little dispute about the facts.

The plaintiff's husband, Bill Hargis, while trotting down the sidewalk arm-in-arm with a friend, struck his head on the horizontal cross-arm of an awning attached to a building owned by Mrs. Myrtle Brichetto. As a result of the collision with the awning, he was thrown to the sidewalk,--received further injuries and died.

The awning is the usual type, made of canvas stretched on metal pipe. Photographs in the record show that the top of the awning, across its full length, was attached to the building. A vertical half-inch pipe or slide-rod was also attached to the building and provided a run-way upon which the horizontal arms of the awning were raised and lowered by ropes through pulleys. On the end of each cross-arm was a short piece of pipe large enough to slip freely up and down the vertical pipes attached to the wall. These were attached to the short horizontal arms, and they in turn were attached to the long pipe to which the front of the awning was attached along the street side. When fully raised, the awning lay flat against the building and when fully lowered, it was approximately parallel with the surface of the street. At the time of the accident the awning was neither fully lowered nor fully raised, but was 'at half-mast,' as described by the Court of Appeals. We discuss its exact position in detail hereinafter.

For the proper and approved installation of this type of awning, a piece of chain is attached to the wall of the building and to the approximate center of the horizontal cross-arms. This chain prevents the points of the horizontal arms where they are attached to the building from slipping down on the vertical slide rod when the awning is in a fully lowered position. No such chain was provided for the awning in question. The ropes and canvas of the awning were old and dilapidated. It had been installed and maintained as it was at the time of the accident, for a number of years prior thereto. The pipes and frame of the awning were in good condition. When the building ends of the horizontal bars were at the lowest position on the slide rods, they were only five feet, two and three-fourths inches above the sidewalk, but slanted upward toward the outer or street ends.

As it was installed and maintained, the awning violated two ordinances on the subject which had been enacted by the authorities of the City of Knoxville. One was in effect at the time of the lease or leases to Mrs. Clark, and the other was effective after December 1942. This accident occurred on August 28, 1943. The undisputed evidence is that this awning was only seven feet and a fraction of an inch above the sidewalk on the street side, and so violated both of the City ordinances on the subject. We think the Court of Appeals was in error in finding that the awning at the time of the accident was 'at half-mast.' The awning was lowered to the full extent, and the fact that it had no restraining chain permitted the ends of the horizontal bars at the building end to slip down the sleeve to a point where the horizontal bars at the building end were only five feet, two and three-fourths inches above the sidewalk. We reach the conclusion from the evidence of Garrett and Hall, who were eye-witnesses of the accident. The tenant, Mrs. Clark, testifies, and her testimony is undisputed, that she fully lowered the awning the morning of the accident: She qualified this on cross-examination only by saying that she did not know for how long the awning had been fully lowered.

This much is clear, that for a number of years the City had permitted the maintenance of the awning which did not comply with its ordinances. The City had no actual notice of the hazard. The tenant of the building has been dismissed. There has been no appeal from that action. The tenancy was one from month to month. The owner of the building had maintained this awning in violation of City ordinances for an indefinite time before the commencement of the lease or leases to Mrs. Clark, and the illegal maintenance continued through the date of the accident.

After overruling motions for directed verdict by the City at the end of plaintiff's proof and by defendant Brichetto at the conclusion of the evidence, the Trial Judge submitted the case to the jury and a judgment was returned against the City and the owner, Mrs. Brichetto, for $7,000. On appeal the Court of Appeals dismissed the action as to the defendant owner, and reversed and remanded as to the City of Knoxville. All parties filed petitions for certiorari which we granted.

We think the motion of the City for a directed verdict made at the end of plaintiff's proof should have been sustained. The only predicate for the City's liability was its failure to enforce its 'awning ordinances.' Since this was clearly a failure to perform a governmental function, it could not be the basis for liability in tort. Irvine v. Chattanooga, 101 Tenn. 291, 294, 47 S.W. 419; Conelly v. Nashville, 100 Tenn. 262, 46 S.W. 565; McCrowell v. Mayor and Aldermen, 73 Tenn. 685, 690. Charge of nonenforcement of its ordinances, without more, is an insufficient predicate for the City's liability in tort. Dillon, Municipal Corporations (5th ed.) vol., 4, § 1705, p. 2086; McQuillan, Municipal Corporations (2d ed.) vol. 7, Revised, § 2964, p. 179; 43 C.J., Municipal Corporations, p. 1030, note 4; Harman v. City of New York, 148 A.D. 61, 131 N.Y.S. 1032; Herman v. City of New York, 148 A.D. 61, 131 N.Y.S. 1032.

The statement of the Trial Judge, before submitting the case to the jury, that the City relies on its motion made at the end of the plaintiff's proof, put the City in exactly the same position it would have been in had it renewed its motion at the end of all the evidence, since it had introduced no evidence to effect a waiver of the former motion, and the evidence introduced by the Codefendant did not touch the question of the City's liability.

There was no attempt to prove either actual or constructive notice to the City of the dangerous condition of the awning. Such notice was also an indispensable condition to charge the City. Osborn v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510; Brown v. City of Chattanooga, 180 Tenn. 284, 174 S.W.2d 466; Jackson v. Pool, 91 Tenn. 448, 19 S.W. 324; 43 C.J. 1030; Fox v. Village of Manchester, 183 N.Y. 141, 75 N.E. 1116, 2 L.R.A., N.S., 474.

There remains to consider the liability of the defendant owner, Mrs. Brichetto. The awning had been installed originally, not by the tenant Mrs. Clark, but by a former tenant. Upon the termination of the former tenancy, the awning, being a fixture, became the property of the owner, and so far as liability to third persons was concerned, the owner was thereupon charged with the duty of its safe maintenance, whether the new tenant, Mrs. Clark, assumed duties with regard to the repair of the leased premises or not. Beaman v. Grooms, 138 Tenn. 320, 325, 326, 197 S.W. 1090, L.R.A.1918B, 305; 36 C.J., Landlord and Tenant, p. 225, § 915. The rule is thus stated:

'A lessor of land who transfers the possession thereof in a condition which he realizes or should realize as involving unreasonable risk of bodily harm to others outside the land, is subject to the same liability for bodily harm subsequently caused to them thereby as though he had remained in possession.' Restatement, Law of Torts, vol. 2, p. 1013.

The illustration on page 1015 is also apposite:

'A leases to B a building, on which, as A knows or as a reasonably careful inspection would disclose, the rainspouts are in such bad condition that they discharge quantities of water upon the sidewalk of a highway upon which the building abuts. Six months after B has taken possession the water discharged from the rainspouts upon the highway, freezes and forms ice ridges upon which C, a traveler on the highway, slips and falls, sustaining serious harm. A is liable to C, irrespective of whether B has or has not covenanted to keep the building in good repair.' Restatement Law of Torts, vol. 2, p. 1015.

In a California case holding the owner of certain premises occupied by a tenant,...