Kirby v. Macon County

• Decision Date: 17 October 1994
• Citation: 892 S.W.2d 403
• Parties: Ronald Allen KIRBY, and wife Sharon Kirby, Plaintiffs-Appellees, v. MACON COUNTY, Tennessee, Macon County Highway Department, and Bernice Jones, Highway Superintendent, Defendants-Appellants.
• Court: Tennessee Supreme Court

Page 403

892 S.W.2d 403

Ronald Allen KIRBY, and wife Sharon Kirby, Plaintiffs-Appellees, v. MACON COUNTY, Tennessee, Macon County Highway Department and Bernice Jones, Highway Superintendent Defendants-Appellants.

Supreme Court of Tennessee at Nashville.

Oct. 17, 1994.

Rehearing Denied Nov. 21, 1994.

Michael E. Evans, Nashville, for appellants.

F. Dulin Kelly, Nashville, for appellees.

OPINION

BIRCH, Justice.

In this action brought under the provisions of the Governmental Tort Liability Act, ¹ the plaintiff, Ronald Kirby, sought damages for injuries received when his truck slid off a one-lane bridge in rural Macon County. Kirby asserted that Macon County was negligent in failing to install standard metal guardrails on the bridge, or, alternatively, in failing to adequately maintain the wooden wheel guards already installed. The trial court, sitting without a jury, found that the general immunity provisions of the Act applied, found that the county did not have actual or constructive notice of the missing wheel guards, and held that all defendants were immune from liability. On appeal, the Court of Appeals held that even though the county did not have actual or constructive notice of the missing wheel guards, the bridge was defective as built; therefore, the county was charged with notice of the defect and thereby lost its immunity. We find that the Court of Appeals erred in dispensing with the requirement of actual or constructive notice; we conclude that the defendants are immune from suit. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

I

The plaintiffs, Ronald and Sharon Kirby, are residents of Westmoreland, Tennessee, located in Sumner County near the Macon County line. In the days preceding the accident, a winter storm had covered the roads and bridges in the area with ice. On the morning of the accident, December 24, 1989, Ronald Kirby and his family awoke to find their water pipes frozen, so he set out in search of a fresh-water spring. During his excursion, he came to a one-lane bridge over Big Trammel Creek in Macon County. According to his testimony, the road leading to the bridge was patchy with ice, and the bridge itself was frozen solid over its entire surface. Kirby successfully negotiated the bridge by slowing his truck to approximately ten miles per hour. After crossing the bridge, he located a spring, filled his containers with water, and began the return trip home.

From the direction in which Kirby was traveling, the road leading to the bridge curves to the left immediately before reaching the bridge, so that one's approach requires a slight left turn to drive onto the bridge. When Kirby reached the bridge on his return trip, he stopped his truck on a dry patch of road approximately twenty to thirty feet from the edge of the bridge. He then let his foot off the brake and idled the truck onto the bridge at one to two miles per hour. When his back tires reached the bridge, the truck began to slide to the right; because of the ice, Kirby could not stop. As he slid towards the edge of the bridge, he noticed for the first time that there were no wheel guards in place on that section of the bridge. The truck slid off the side of the bridge and landed on its top in the frozen creek. Kirby suffered numerous serious injuries, including a broken sternum, a broken arm, a partially severed ear, shoulder injury, and crushed vertebrae.

At trial, the bridge over Big Trammel Creek was described as a wooden bridge approximately twelve feet wide and forty-seven feet long. There are no metal guardrails along the sides of the bridge. There are, however, wheel guards constructed of pieces of lumber nailed together along the edges of the bridge. The wheel guards are approximately twelve inches high. A number of people who regularly used this bridge testified that it is common for parts of the wheel guards to be missing. The plaintiffs introduced into evidence a number of bridge inspection reports prepared by the Tennessee Department of Transportation covering their inspections of this bridge in 1981, 1984, 1986, and 1988. ² Each of the reports cited the absence of guardrails along the bridge as a "poor" or "critical" condition and recommended the installation of approved guardrails. The 1986 and 1988 reports also noted the condition of the wheel guards. In 1986, the wheel guards were found "loose in several areas;" the 1988 report stated that "[t]he timber curb boards are in poor condition. There is a 50% loss of boards, and the remainder have areas of heavy decay."

The defendants introduced into evidence the affidavits of two employees of the Tennessee Department of Transportation, both of whom had some responsibility for aspects of the state's bridge construction and inspection programs. Each acknowledged an awareness of the state's recommendation for the installation of guardrails on this particular bridge. However, each stated, essentially, that "[o]nce the state makes recommendations to the county concerning an area such as guardrails, it is up to the county and its officials to decide whether to erect such guardrails. If the county officials in considering the maintenance recommendations chooses [sic] not to erect guardrails, that is within their discretion."

Defendant Bernice Jones, the highway superintendent of Macon County, related two reasons the county had disregarded the state's recommendations concerning the installation of guardrails. First, this particular bridge was located in a very remote, rural area and large farm machinery regularly crossed this bridge. If guardrails had been installed, farmers would not have been able to cross this bridge with their farm machinery. ³ Second, the county simply could not afford to install guardrails on every bridge.

Jones acknowledged continuing difficulty maintaining the wooden wheel guards the county had chosen to install. He testified that when the wide farm equipment crossed the bridge, the wheel guards were damaged or displaced. Although no formal schedule existed for checking the more than one hundred bridges in the county, officials regularly checked them for needed maintenance and repairs. Jones testified that approximately three weeks prior to Kirby's accident, he discovered that a twelve-foot section of the wheel guard on the bridge in question was missing; his work crew immediately replaced the missing section. He testified further that between the time of its replacement and Kirby's accident, no one had contacted his office to notify him that any portion of the wheel guards was missing from the bridge. Several of the plaintiffs' witnesses testified about the frequency with which the wheel guards were displaced; not one of them, however, notified county officials when they were missing.

When the trial was concluded, the trial court held that the proximate cause of the accident was the section of wheel guard missing from the bridge. However, because the plaintiffs had failed to prove either actual or constructive notice to the county of the defective, unsafe or dangerous condition, i.e., the missing wheel guards, the trial court dismissed the case. See Tenn.Code Ann. § 29-20-203(b).

On appeal, the Court of Appeals reversed the judgment of the trial court. Although it agreed with the trial court's conclusion that the plaintiffs had failed to prove actual or constructive notice, the intermediate court found that under the rationale of Glover v. Hardeman County, 713 S.W.2d 73 (Tenn.Ct.App.1985), the bridge was defective as originally constructed, actual or constructive notice was not required, and the county was liable. The court opined that the original defect was the absence of guardrails, and that the installation of wheel guards was inadequate to cure the defect. Therefore notice to the county was presumed, and the county was not immune from suit under Tenn.Code Ann. § 29-20-203. We find that the decision to install wheel guards instead of the standard guardrails falls within the discretionary function exception of Tenn.Code Ann. § 29-20-205(1). Hence, the bridge was not defective as originally constructed. Furthermore, we find that the defendants did not have actual or constructive notice and are thus immune from this suit.

II

Prior to the implementation of the Governmental Tort Liability Act, Tennessee courts adhered to the common law doctrine of sovereign immunity, under which the State and certain of its governmental subdivisions were protected from liability for damages caused by their tortious act. The Tennessee Constitution provides that "[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct." Tenn. Const. art I, § 17. The passage of the Tennessee Governmental Tort Liability Act in January 1974 was therefore an act of grace through which the legislature provided general immunity from tort liability to all governmental entities, removing it, however, in limited and specified instances.

The Act provides, in pertinent part, as follows:

Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.

Tenn.Code Ann. § 29-20-201(a) (Supp.1993). The Act then removes immunity "for injuries resulting from the negligent operation by any employee of a motor vehicle or other equipment," (Tenn.Code Ann. § 29-20-202(a)), "for any injury caused by a defective, unsafe, or dangerous condition of any street, alley sidewalk or highway," (Tenn.Code Ann. § 29-20-203(a)), "for any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement," (Tenn.Code Ann. § 29-20-204(a)), and "for injury proximately...