Learue by Learue v. State

• Decision Date: 20 August 1987
• Parties: William Douglas LEARUE, By next friend Mother, Hazel LEARUE, Claimant-Appellant, v. STATE of Tennessee, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 3

757 S.W.2d 3

William Douglas LEARUE, By next friend Mother, Hazel LEARUE, Claimant-Appellant, v. STATE of Tennessee, Defendant-Appellee.

Court of Appeals of Tennessee,

Western Section, at Jackson.

Aug. 20, 1987.

Application for Permission to Appeal

Denied Nov. 2, 1987.

Jeffrey A. Garrety, Jackson, Sidney W. Gilreath, Knoxville, for claimant-appellant.

W.J. Michael Cody, Atty. Gen. and Raymond S. Leathers, Asst. Atty. Gen., Nashville, for defendant-appellee.

CRAWFORD, Judge.

Claimant, William Douglas Learue, a minor by next friend and mother, Hazel Learue, appeals from a decision of the Tennessee Claims Commission denying his claim for personal injuries against the State of Tennessee.

On July 18, 1983, claimant, a healthy, active, fourteen year old boy, sustained personal injuries at the swimming facility maintained by the State of Tennessee at Chickasaw State Park in Chester County, Tennessee. The swimming facility is a roped off area in a lake, and at the end of the swimming area, toward the entrance, a sand beach is maintained along the water's edge separated from the water by a concrete retaining wall. The water depth along the retaining wall ranges from two to three feet. There is a gradual increase in the water depth away from the retaining wall toward the deeper swimming area. There are no signs posted showing the depth of the water nor prohibiting diving from this concrete retaining wall into the water.

We will briefly summarize the pertinent testimony introduced by respective parties. Plaintiff's proof was as follows:

Richard S. Elliott was qualified and allowed to testify as an expert witness on management and the safe operation of swimming facilities. He opined that diving should be prohibited in water less than five feet in depth, and that no diving should be allowed from a retaining wall such as involved in the present case unless there is a depth of water at least eight feet. He conceded that there was a disagreement concerning the safe depths for diving and that theoretically safe dives could be made in very shallow water. He maintained, however, that at a public facility diving should be supervised and restricted to areas with depths he recommended.

Troy Winebaugh, claimant's cousin, testified that he was with the claimant at the time he was injured. Claimant and Winebaugh, along with other relatives, had spent the week together prior to the accident. During that week, he and claimant went swimming at least twice a day, and routinely dived into the water from the retaining wall on each of those occasions. He testified that he is two years older than claimant, and until claimant's injury he did not really appreciate the nature of the danger in diving in this particular area. He testified that on the occasion of the injury, after they had dived into the water, claimant began calling for help, and he learned that he had been injured. He was first to give care and attention to claimant.

Claimant, William Douglas Learue, testified that he was born May 20, 1969, and weighed 155 to 160 pounds at the time of the accident. He considered himself a strong swimmer. On the first day that he went to the park to go swimming, he stepped off of the retaining wall to see how deep it was and see what kind of bottom it had. During the week before the accident, he observed lifeguards diving off of the retaining wall, and he and his cousin went swimming twice a day, each day, during that week, and dove from the wall on all of those occasions. On the occasion of the accident, he did not do anything different from what he had been doing. He had sand on his forehead when he came up. When he came up he was hollering for help, and eventually his cousin removed him from the water and received some assistance from the lifeguards on duty and the waterfront director. He described his injury and medical treatment and rehabilitation and his present condition in great detail, which we will not relate at this time.

Defendant's proof was as follows:

Terry Bolton Pratt testified that he was one of the lifeguards on duty on the date of the accident and at that time was 21 years of age, a senior at Union University, and employed at Maple Spring Baptist Church as a Minister of Youth. He observed the claimant running on the grass across the sand to dive into the lake, and it appeared to him that he made a proper dive. After he realized that the claimant was injured, he assisted in caring for him and moved him to the shade. He testified that the lifeguards dived off the retaining wall from time to time and that there was no rule or prohibition against anyone doing so. The lifeguards were not instructed by their supervisor to prevent the patrons from diving off the retaining wall.

Kimberly Murphy Robertson testified that she was a college student and a lifeguard on duty at the time of the accident. She testified that there were no written rules against diving at this area, that it was her understanding that it was left up to the individual lifeguards to decide, and that she, on occasion, had prohibited diving at this area, because she considered it dangerous.

Gary Hemby testified that he was a teacher at Chester County Junior High School, and in the summer was employed as waterfront director at Chickasaw State Park. He was so employed at the time of the accident involving claimant. He stated that he had been with Chickasaw State Park for some twenty years and that there had never been a neck injury at the swimming area. He testified that there was no formal method for establishing rules with regard to safety, that in the 1960's he had first prohibited diving from this particular retaining wall, but after a couple of years, he abandoned this prohibition. He could not answer the question as to whether he thought it was too shallow to be diving at this particular area.

Donald Earl Holmes testified that he is a park ranger and has worked at the park for nine years and has been a ranger for six years. He recalled his activities when he was called to the scene after the accident. He confirmed that there were no rules regarding diving from the retaining wall, and that the water generally remains stable along the wall. He did not consider the diving from this location a safety hazard and he had dived off the retaining wall himself.

For the purposes of this opinion, we did not deem it necessary to outline the testimony concerning the nature and extent of the injuries and damages sustained by the claimant.

Before considering the merits of the controversy, we first should comment concerning the Commissioner's determination of jurisdiction. Initially, the Commissioner determined that the Commission had jurisdiction to consider this claim pursuant to T.C.A. § 9-8-307(a)(3), and (5) which provide:

9-8-307. Jurisdiction--Claims--Immunities.--(a) The commission or each commissioner sitting individually shall have exclusive jurisdiction to determine all monetary claims against the state falling with one or more of the following categories:

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(3) Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures;

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(5) Negligent care, custody and control of persons;

We agree that jurisdiction is proper pursuant to (a)(3), but we disagree with the Commission's ruling that jurisdiction is conferred by (a)(5). We feel that a fair reading of the statute, giving the words their usual and ordinary meaning establishes that the legislature intended that (a)(5) was to pertain to persons confined to penal institutions, residences, or health and other similar facilities maintained by the state. Our interpretation of (a)(5) is that it has no application to persons paying entrance fees to state maintained recreation facilities merely because there are rules and regulations pertaining to the use thereof. Although (a)(5) has no application, jurisdiction was proper under (a)(3). The state concedes that the Commission properly considered the case pursuant to T.C.A. § 9-8-307(a)(3) and, concedes that the notice requirement was met.

Plaintiff has presented three issues for review which can be consolidated into the single issue of whether the Commissioner erred in finding that plaintiff was guilty of contributory negligence that bars his recovery.

This case is properly before this court on direct appeal from the Tennessee Claims Commission and is governed by Tennessee Rules of Appellate Procedure. T.C.A. § 9-8-403(a)(1) (1986 Supp.). Since this is a nonjury case, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the Commission. Unless the evidence preponderates against the findings we must affirm, absent error of law. T.R.A.P. 13(d).

In essence, the Commission found that the State was negligent in maintaining a hazardous condition by allowing diving in the area involved and that the plaintiff was not guilty of assumption of risk. The Commission then found that plaintiff was contributorily negligent which barred his recovery.

We quote from the Commission's findings:

Did the defendant have a duty to prohibit diving from the...