Johnson v. Tennessean Newspaper,Inc.

• Decision Date: 16 June 1951
• Citation: 241 S.W.2d 399,28 Beeler 287,192 Tenn. 287
• Parties: , 192 Tenn. 287 JOHNSON v. TENNESSEAN NEWSPAPER, Inc., et al. (two cases).
• Court: Tennessee Supreme Court

Page 399

241 S.W.2d 399

28 Beeler 287, 192 Tenn. 287

JOHNSON v.TENNESSEAN NEWSPAPER, Inc., et al.(two cases).

Supreme Court of Tennessee.

June 16, 1951.

Goodpasture, Carpenter & Dale, Nashville, for appellants.

Hume, Howard, Davis & Boult, Nashville, for Tennessean Newspaper, Inc.

Claude Callicott, Nashville, for City of Nashville and Board of Park Com'rs.

TOMLINSON, Justice.

The City of Nashville and its Board of Park Commissioners own and maintain Centennial Park within the municipal boundaries for the well-being etc. of the public, and in conjunction with the Nashville Tennessean provided for the entertainment of the public by a musical concert upon the grounds of this park on May 29, 1949.Mrs. Annette Johnson as among the thousands who attended.While walking in this park along with many of those in attendance at a place where it was expected the public would walk she stepped into an invisible hole more particularly hereinafter described.The resulting injuries were severe and painful.She and her husband instituted separate suits for damages against the Tennessean, the City of Nashville and its Board of Park Commissioners.

At the conclusion of the trial of the two cases heard as one the Trial Judge directed a verdict in favor of the Tennessean because it had no control over this park or the manner in which its grounds should be kept.The question of whether the City and its Park Commission were guilty of a nuisance in the operation and maintenance of the park in connection with the existence of this hole into which Mrs. Johnson stepped was submitted to the jury over objection.The first count of the declarations sought a recovery against the City and its Park Commission on that ground.The jury returned verdicts for Mr. and Mrs. Johnson.

The Court of Appeals affirmed the action of the Trial Judge with reference to the directing of a verdict for the Tennessean.That defendant is no longer before the Court.But the judgment of the Circuit Court was reversed and the suit dismissed as to the City and its Board of Park Commissioners.The Court of Appeals found with reference to this hold that 'as originally created and constructed, this outlet was safe and constituted no nuisance.A dangerous situation resulted from the manner in which it was maintained.But this dangerous situation was the result of the negligent manner in which a proper, safe and correct system was maintained.The municipality is not liable for such negligence in the performance of this governmental function.'

Mr. and Mrs. Johnson filed petitions for certiorari.The writs were granted, and the question is now to be decided.

About the year 1926respondents decided to restore or repair the Parthenon located in Centennial Park and to make its beauty more readily discernible to the public.In accomplishing this, much shrubbery or growth east of the Parthenon was removed.Young trees and flower beds were planted.The particular section east of the Parthenon involved here and involved in those improvements consisted of a strip of land called the Mall.In order to furnish water to those trees and flower beds and grass four water mains were placed under this Mall and at intervals outlets were constructed, four of them upon each water main.These outlets consisted of a hole about 8 inches in diameter and 18 inches deep.This hole was encased with clay pipe.A small iron water pipe was connected to the main at each of these holes and came up through the center of the hole to a point just below the surface of the ground.The watering of the trees, flowers, etc. was accomplished by attaching a hose to these pipes.A round concrete block 2 inches thick and 9 1/2 inches in diameter with a circular about thumb size hole in its center was placed over the top of each of these holes for the purpose of covering.It very frequently happened through the following years that these concrete blocks were removed by children or adults.They were often found in the children's playground.This removal was easily accomplished because of the circular center hole in the block, that hole being there for that purpose.It was the duty of the employees to either replace a removed block or, if lost, to procure from the supply kept on hand another such block and place it over the hole.It was also their duty to examine the outlets for ascertainment of whether the blocks had been removed.

In connection with this duty of the employees to examine the outlets for the discovery of whether a concrete block had been removed from any of them it may as well be said at this point that the question of negligence is hardly involved because an employee might examine the outlets at a given time and find them all covered with these blocks, and then within a few minutes thereafter some child or adult was likely to remove a block from one of the outlets inspected a few minutes earlier.The existence of the uncovered invisible hole into which Mrs. Johnson stepped illustrates the quite apparent fact just stated.An employee testifies that he had occasion to observe this particular hole not more than two days before this accident and found the concrete block in place.

The entire surface of the Mall was sown in Bermuda grass.This grass grew over these holes to such an extent as to conceal the existence of the holes.

Mr. and Mrs. Johnson along with about 10,000 others were in the park for the purpose of enjoying the concert.They and many others were on this Mall where the respondents here expected the public would be.As Mrs. Johnson and her husband were walking along unaware of the existence of such danger, she stepped into one of these invisible holes and her leg went apparently to its bottom with the resulting injuries mentioned.

It was testified by the general manager for the Park Commission, he having been previously superintendent of the park for 17 years, that these concrete blocks with a hole in the center made 'an attractive play thing', and that those in charge of this park had trouble keeping them 'in place on account of boys playing with them'.This official admitted that these holes when the concrete top were not on were 'regular pitfalls or trap' and known to be 'extremely dangerous'.Much other testimony to the same effect was given on cross-examination by other officials or employees of respondents.

Inasmuch as a City acts in its governmental capacity in the operation and maintenance within its boundaries of a municipally owned park, it is not liable for injuries to a member of the public resulting from negligence of its servants or employees in the operation and maintenance of such a park, Mayor and City Council of Nashville v. Burns, 131 Tenn. 281, 174 S.W. 1111, L.R.A.1915D, 1108, unless the municipality 'authorizes or with knowledge permits' such parks ...