Hawks v. City of Westmoreland

• Decision Date: 31 December 1997
• Citation: 960 S.W.2d 10
• Parties: Tracy HAWKS and Dale Hawks, Plaintiffs-Appellees, v. CITY OF WESTMORELAND, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 10

960 S.W.2d 10

Tracy HAWKS and Dale Hawks, Plaintiffs-Appellees, v. CITY OF WESTMORELAND, Defendant-Appellant.

Supreme Court of Tennessee at Nashville.

Dec. 31, 1997.

Bruce N. Oldham, Oldham & Dunning, LLC, Gallatin, for Plaintiffs-Appellees.

J. Russell Farrar, Deborah R. Sowell, Farrar & Bates, Nashville, for Defendant-Appellant.

OPINION

DROWOTA, Justice.

The primary issue in this appeal is whether the City of Westmoreland had "constructive notice" of the dangerous and defective condition of the fire hydrants which resulted in the total fire loss of the home of the plaintiffs, Tracey and Dale Hawks. Finding that the inoperable fire hydrants would have been discovered had the City performed an adequate inspection, the lower courts charged the City with constructive notice of the dangerous and defective condition and held it liable to the plaintiffs for the damages that could have been avoided had the fire hydrants been operable. After carefully considering the record, as well as the briefs and argument of counsel, we agree that the City should be charged with constructive notice and, therefore, affirm the judgment of the Court of Appeals upholding the trial court's judgment in favor of the plaintiffs. ¹

BACKGROUND

On October 23, 1993, at approximately 3:45 a.m., the Westmoreland Volunteer Fire Department was dispatched to extinguish a fire of unknown origin at the home of the plaintiffs, Tracey and Dale Hawks, located at 1135 Rainbow Circle in the City of Westmoreland. The plaintiffs were out of town when the fire occurred.

Though a portion of the roof was ablaze when the firefighters arrived, the fire primarily was confined to the middle of the house. Utilizing the water from the tanks on the fire trucks, the fire was brought under control within fifteen to thirty minutes of the firefighters' arrival. When the water supply in the tanks was exhausted, the firefighters attempted to obtain water from the two fire hydrants nearest the burning home. However, the hydrants yielded no water because an underground valve in the feeder pipe for each was closed. Although the firefighters had with them tools to open the valve in the hydrants, they did not have with them the six foot wrench which was required to open the underground valves. When it was not being used by maintenance employees of the City water system, that tool was kept at the public works building.

When the firefighters realized that the hydrants were inoperable, they sent tankers to the civil defense building to obtain more water, called a neighboring fire department for backup assistance, and dispatched a city employee to retrieve the special wrench to open the underground valves. While the firefighters waited for additional water, the fire gained momentum. The home was almost totally destroyed by fire before either additional water or the special wrench to open the valves arrived at the scene.

Thereafter, the plaintiffs brought this lawsuit against the City of Westmoreland pursuant to the Tennessee Governmental Tort Liability Act, specifically Tenn.Code Ann. § 29-20-204 (1980 Repl.), which provides as follows:

(a) Immunity from suit of a governmental entity is removed for any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement owned and controlled by such governmental entity.

(b) Immunity is not removed for latent defective conditions, nor shall this section apply unless constructive and/or actual notice to the governmental entity of such condition be alleged and proved in addition to the procedural notice required by § 29-20-302.

The plaintiffs sought damages from the City for the total fire loss of their home which they alleged resulted from the dangerous or defective condition of the fire hydrants. While the parties agreed that the City had no actual knowledge that the fire hydrants were inoperable, the plaintiffs alleged that the City was not immune from suit because it had constructive notice of the dangerous or defective condition. The City denied that it had constructive notice and also claimed that the closed valves and inoperative hydrants were latent defective conditions for which it retained immunity from suit under the statute.

The proof at trial established that the valves which were closed are located in an underground chamber approximately twelve to eighteen inches from the fire hydrants, between the main waterline and the hydrants. The chamber is covered by a small cap about the size of a coffee can. To close the valve, it is necessary to pry off the cap, insert the special wrench, and turn the valve clockwise. The valves can not be closed by natural causes, and the special wrench, which is not an item widely available to the public, must be used to effect the closure. The underground valves are only closed by City employees if the adjacent hydrants are leaking and in need of repair. Otherwise, the underground valves should be open. It was undisputed that the valves should have been open on October 23, 1993, when the plaintiffs' home was completely destroyed by fire.

The parties stipulated that the hydrants and water line at issue in this appeal were installed as part of a water system improvement project which was completed in May of 1991 and which was constructed, pursuant to a contract, for the City by Eatherly Construction Company. John Coleman Hayes, P.C., ("Hayes") was employed as the inspector for the improvement project, and Danny Hawker, an employee of Hayes, performed the inspection. Although Hawker testified by deposition that all the valves near the hydrants were in the open position when he completed the inspection of the project, he admitted that he did not test each individual hydrant. In addition, Hawker's log book reflected that a leak was detected at Rainbow Circle on February 29, 1991. On March 1, the log book reflected that three leaks had been found at that location. Additionally, the log book reflected that only one of the leaks had been repaired. Hawker testified that the other two leaks were eventually repaired even though the log book contained no notation. Hawker admitted, however, that if the fire hydrants themselves were leaking, he would have closed the underground valves to conduct the inspection and test of the system.

The plaintiffs also presented proof to show that the City of Westmoreland was required by State law ² to establish and maintain an adequate flushing program. The purpose of the flushing program is to insure that the chlorine level in the water supply system is sufficient to kill bacteria and provide fresh water. The flushing program is not designed or intended to test and insure that fire hydrants are functioning properly. Under the state law, each municipality has the discretion of choosing the method and frequency of flushing. The method and frequency used for flushing the water system in Westmoreland varied.

The plaintiffs offered testimony to indicate that the flushing program utilized by the City was inadequate because the chlorine level in the water was not tested at each individual hydrant on a regular basis. Other testimony indicated that because the hydrants were on an open line, measuring the chlorine residual levels at the end of the line was sufficient. However, two city employees testified that, had the flushing program been conducted correctly, the City would have discovered the closed underground valves and the inoperable hydrants.

In addition, Larry Akins, who is state certified in water distribution and who currently maintains the flushing program for the City of Westmoreland testified that he measures the chlorine residual level at each of the sixty fire hydrants in the City once every three months. In response to questions from the trial court, Akins opined that the chlorine residual level in the water should be measured at each individual fire hydrant at least once per year. Akins stated that under no circumstances would he forego testing the chlorine level at each hydrant for two years. In light of the fact that the two hydrants at issue in this case had been in existence for approximately two and one-half years when this fire occurred, Akins testified that the City should have known that the underground valves next to the hydrants were closed.

Based upon the proof summarized above, the trial court found that the two fire hydrants nearest the plaintiffs home were in a dangerous and defective condition at the time of the fire on October 23, 1993, and, as a result, the plaintiffs had sustained additional damage to their home which otherwise could have been avoided. The trial court concluded that the City had constructive notice of the condition of the fire hydrants, and found the other defenses raised by the City inapplicable. As a result, the trial court found the City liable and awarded a judgment to the plaintiffs in the amount of $50,000. ³ The Court of Appeals affirmed the trial court's judgment. Thereafter, we granted the City permission to appeal and, for the reasons that follow, now affirm.

GOVERNMENTAL TORT LIABILITY ACT

The doctrine of sovereign immunity derives from "feudal notions of the divine right of kings. In feudal England the King was at the very pinnacle of the power structure and was answerable to no court since 'the King can do no wrong.' " Cooper v. Rutherford County, 531 S.W.2d 783, 786 (Tenn.1975) (Henry, J., dissenting). The doctrine has been a part of the common law of Tennessee for more than a century ⁴ and provides that suit may not be brought against a governmental entity unless that governmental entity has consented to be sued. Lucius v. City of Memphis, 925 S.W.2d 522, 525 (Tenn.1996). Indeed, this longstanding rule of sovereign immunity is recognized by the Tennessee Constitution which provides, "[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct." Art. I, § 17, Tenn....