Johnson v. Oman Const. Co., Inc.

• Decision Date: 06 January 1975
• Citation: 519 S.W.2d 782
• Parties: Truman JOHNSON et ux., Appellants, v. OMAN CONSTRUCTION COMPANY, INC. et al., Appellees.
• Court: Tennessee Supreme Court

Page 782

519 S.W.2d 782

Truman JOHNSON et ux., Appellants, v. OMAN CONSTRUCTION COMPANY, INC. et al., Appellees.

Supreme Court of Tennessee.

Jan. 6, 1975.

John T. Conners, Jr., M. Taylor Harris, Jr., Nashville, for appellants.

Michael Miller, Larry Snedeker, Edward S. Kelly, Jr., Nashville, for appellees.

OPINION

HARBISON, Justice.

This is an action for wrongful death brought by Mr. and Mrs. Truman Johnson for the death of their son Ken Johnson which occurred on October 30, 1972 as the result of a single car accident. The accident occurred in the City of Berry Hill, Tennessee, a municipal corporation. Named as defendants in the action are the City of Berry Hill together with the Metropolitan Government of Nashville and Davidson County, Tennessee and Oman Construction Company.

The suit was dismissed by the Circuit Court on motions filed by each of the municipal corporations pursuant to Rule 12 of the Tennessee Rules of Civil Procedure, and as to defendant Oman Construction Company, Inc. the suit was dismissed on motion for summary judgment filed pursuant to Rule 56.

As to the two municipal corporations, therefore, the case is before this Court only upon the allegations of the complaint. With respect to Oman Construction Company, plaintiff is confronted with the provisions of Rule 56.05 to the effect that when a motion for summary judgment is made and supported by affidavits, an adverse party may not rest upon the mere allegations or denials of his pleading. The rule states that his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue of fact for trial. Oman Construction Company filed certain affidavits and exhibits to which no response was made on behalf of the plaintiff.

The allegations of the complaint state that the son of the plaintiffs lost his life when he drove an automobile into a guardrail at the terminus of Biloxi Avenue in the City of Berry Hill. It is alleged that Biloxi Avenue had previously been a through street, but that on the date of the accident the street had been terminated and interrupted by reason of the construction of an interstate highway. It is alleged that the construction of the interstate was performed by Oman pursuant to a written contract between that company and the State of Tennessee.

The complaint alleges that pursuant to the contract of construction, Oman was required to erect a 40--foot guardrail or barrier at the point of interruption of Biloxi Avenue and cause to be erected at or on the said guardrail a stop sign so as to warn approaching motorists of the roadway construction.

It is further alleged that the two municipal corporations were required to and did undertake to maintain roadways in Davidson County in a safe and proper condition and in particular 'to warn motorists of dangers and hazards on the roadway by the erection of proper and adequate roadway signs.' The complaint alleges that 'said signs' were required to be in conformity with the minimum standards established by the Manual on Uniform Traffic Control Devices on Streets and Roadways adopted by the Department of Highways of the State of Tennessee.

There are no contract documents exhibited to the complaint, nor is there any other or more specific reference to said manual, or any portion thereof, delineating the type or kind of signs referred to by the plaintiffs. There are no statutory references in the entire complaint.

The complaint alleges that on and prior to the date of October 30, 1972 Oman had interrupted Biloxi Avenue and had erected a guard-type barrier consisting of a single metal strip approximately 40 feet long across the terminus of the avenue. The complaint alleges that said metal guardrail was not striped, painted, illuminated or in any other fashion designed to give warnings to motorists of its location. The complaint also states that Oman had negligently failed to construct a stop sign as required by its contract at said barricade.

Again there is no specification of any statutory or contractual requirement that the guardrail be striped, painted or illuminated, and there is no statement that the stop sign called for by the contract was one of the types specified in the manual above referred to.

The complaint alleges that the two municipal corporations 'had caused to be erected several hundred feet east of the said barricade, a small, inadequate and illplaced dead-end type sign which did not afford adequate and proper warning to the traveling public of the barricade ahead.' It is alleged that neither governmental body did anything further to warn motorists of the location of the barricade, despite the fact that said governmental bodies knew or should have known of the location of the barricade and that it was a hazard, not being constructed in accordance with the contractual requirements. It is alleged that the barricade would be particularly dangerous on dark and foggy nights.

Plaintiffs further allege that in the early morning hours of October 30, 1972, their son was driving his automobile in an easterly direction on Biloxi Avenue. It is alleged that the night was dark and the atmosphere quite foggy in the area. The son of plaintiffs struck the barricade, damaging the front of his automobile. It is alleged that the decedent suffered immediate injury to his chest and abdomen, and that he later died from internal bleeding.

The concluding portion of the complaint charges the defendants with joint liability for failure to comply 'with their respective duties to warn the traveling public of the hazard of the interrupted Biloxi Avenue.' Specifically, the complaint charges:

'Approach signs were absent and inadequate; the barricade was not sufficiently and properly marked, in particular to reflect its location on dark and foggy evenings; and there was no sign erected at the barricade.'

It is alleged that these acts and omissions on the part of the defendants combined and concurred so as to result in the death of the son of the plaintiffs.

As to the municipal corporations, we conclude that the plaintiffs rely primarily upon common law negligence. ^* It is admitted, however, by the plaintiffs that written notice was not given to either of the municipal corporations in accordance with the terms and provisions of T.C.A. § 6--1003. This statute provides that no suit shall be brought against any municipal corporation on account of personal injury or property damage resulting from a defective or negligent condition in any street, alley, sidewalk or highway of the municipality unless written notice is given within 90 days after the injury. Failure to give the prescribed notice is expressly made a defense to any liability which might otherwise exist 'on account of the defective or negligent condition of said street, alley, sidewalk, or highway . . .'

One of the municipal corporations, the City of Berry Hill, has pled lack of notice under this statute as a defense to the action. The obstruction in the present case, however, was a permanent one, erected by Oman under a contract with the State. Neither municipal corporation erected the barricade or contracted for the work concerning it. We, therefore, do not deem the existence of the barricade to be a 'defective or negligent condition of said street' within the purview of T.C.A. § 6--1003. Accordingly we hold that failure of the plaintiffs to give written notice to either of the municipal corporations of the existence of the barricade is not a defense to the action and we do not deem it necessary to discuss the other questions raised in the briefs of the parties concerning the scope or applicability of T.C.A. § 6--1003.

The pertinent allegations of the complaint against the municipal corporations charge them with negligence in failing to erect and maintain proper traffic control signs, or to have adequate or proper traffic control devices in the area. It is well settled in this jurisdiction, however, that the location of traffic control signs and the selection of the types of signs erected are governmental functions, for which municipal corporations enjoy governmental immunity. See Sullivan v. Herbert, 225 Tenn. 564, 473 S.W.2d 453 (1971). One exception to this rule which has been recognized in the cases is that liability may lie where the plaintiff alleges facts sufficient to constitute a 'virtual trap', but the allegations of the present complaint are insufficient to bring that rule into operation. See Sullivan v. Herbert, Supra.

This Court does not regard with favor the doctrine of sovereign immunity as applied to municipal or county governments. We note the rapid trend of other American jurisdictions toward abrogation or substantial modification of governmental immunity. See Restatement Second, Law of Torts, Tentative Draft No. 19, § 895 et seq. (1973); Prosser, Law of Torts, 1010--1013 (3d ed. 1964). In adhering to the rule Tennessee is now among the minority of states.

This Court regards the doctrine as an anachronism and as at variance with modern concepts of justice. We note, however, that the General Assembly has enacted the Government Tort Liability Act, T.C.A. § 23--3301 et seq., effective January 1, 1974. This act was not in force at the time of the accident involved in this litigation. As was pointed out by the Court in the recent case of City of Memphis v. Bettis, 512 S.W.2d 270, 272 (Tenn.1974), the new act 'indicates a willingness on the part of the legislature to alter the law of sovereign immunity . . .'

The new statute, however, in effect permits local option as to the liability of cities, counties and other political subdivisions of the state. It purports to remove immunity in a number of areas but permits a local government to 'exempt itself' under certain conditions.

We do not regard this statute as dealing with the subject in a complete or comprehensive manner. We are reluctant to take judicial action in this area, however, without giving the General Assembly...