Mowdy v. Kelly
| Decision Date | 30 December 1983 |
| Citation | 667 S.W.2d 489 |
| Parties | Phillip Carroll MOWDY and Johnna Faye Mowdy, Plaintiffs-Appellees, v. Talmage KELLY, Road Superintendent of Wayne County, Defendant and Wayne County, Tennessee, A Governmental Entity, Defendant-Appellant. 667 S.W.2d 489 |
| Court | Tennessee Court of Appeals |
Patricia Bryant McGuire, Freemon & McGuire, Lawrenceburg, for plaintiffs-appellees.
Charles Jeffrey Barnett, Waynesboro, for defendant-appellant.
Plaintiffs sued defendant Talmage Kelly (Kelly), Road Superintendent of Wayne County, Tennessee, and defendant-appellant Wayne County, Tennessee, under the Tennessee Governmental Tort Liability Act, T.C.A. Sec. 29-20-101 et seq., and alleged they were injured and their automobile damaged as a result of the negligence of the defendants. Subsequent to a bench trial, the Trial Judge dismissed the complaint against Kelly and entered judgment for plaintiffs and against defendant-appellant Wayne County.
The legislature, by enacting the Tennessee Governmental Tort Liability Act, removed immunity from the governmental entities enumerated in the act and, with certain exceptions, made them liable for their negligence. T.C.A. Sec. 29-20-203 removes governmental immunity for injury from unsafe streets and highways and T.C.A. Sec. 29-20-204 removes immunity for injury from dangerous structures. Wayne County, a governmental entity, is within the purview of the Act and, if found to be guilty of negligence, would be liable to plaintiffs.
This case arose when plaintiff Phillip Mowdy was operating, and his wife, plaintiff Johnna Mowdy, was a passenger in, their 1977 Mustang automobile. Plaintiffs started across a wooden bridge in Wayne County when a part of the bridge collapsed under the weight of plaintiffs' Mustang, allowing the right rear wheel of the Mustang to fall through the bridge. Plaintiffs alleged in their complaint that "the bridge was in a defective, unsafe and/or dangerous condition...."; that defendants "had actual and/or constructive notice of the defective condition of the bridge since the bridge was in such an aged, defective, unsafe and/or dangerous condition that it collapsed under the weight of one single automobile." They further alleged that "[d]efendant, Talmage Kelly, in his duties as Road Superintendent of Wayne County, Tennessee, had the duty to maintain and supervise the road system ...; and he breached his duty when he allowed said bridge to be traveled while in such a defective, unsafe and/or dangerous condition."
The Trial Judge found that at the time the accident occurred the bridge "was in a defective, unsafe and dangerous condition; ... that the Defendants had adequate time and opportunity to discern the dangerous conditions; that the Defendants had constructive notice of the dangerous condition; [and] that this cause of action is sustainable under Tennessee Code Annotated, Section 29-20-203." 1 The Trial Judge specifically found that T.C.A. Sec. 29-20-204 2 and T.C.A. Sec. 29-20-205 were not applicable. The Trial Judge dismissed the suit against Kelly after finding that plaintiffs' cause of action was "not based per se upon any alleged negligent act of an employee within the scope of his employment."
We review this case de novo upon the record of the trial court accompanied by a presumption of the correctness of the finding of the trial court, unless a preponderance of the evidence is otherwise. Tenn.R.App.P. 13(d). When the evidence preponderates against the finding of the trial court, it is the duty of this Court to enter a decree as the law and evidence warrant. Tipton v. Smith, 593 S.W.2d 298, 301 (Tenn.App.1980). The record supports the Trial Judge's finding that at the time of the accident the bridge "was in a defective, unsafe and dangerous condition." It is unnecessary under the facts of this case for this Court to decide whether the Trial Court erred in finding that T.C.A. Sec. 29-20-204 was inapplicable.
We do hold that the Trial Judge erred in his finding that T.C.A. Sec. 29-20-205 was not applicable. Plaintiffs alleged in their complaint that it was the duty of Talmage Kelly, the Wayne County Road Superintendent, to maintain and supervise the road system and that he breached his duty when he allowed the bridge to be traveled in a defective, unsafe or dangerous condition. The evidence supports this allegation.
No statute has been cited, nor has our research disclosed one, that imposes upon a county the duty to inspect its roads and bridges and we are unaware of any common law duty imposed upon a county to inspect its roads and bridges. The only evidence in this record concerning a duty to "inspect, maintain, and protect the road system in Wayne County" was given by Kelly on cross-examination.
We, likewise, have been unable to find a statute which imposes a duty upon the Wayne County Road Superintendent to inspect. It may be that the duty to inspect is pursuant to a private act or even a resolution of the Wayne County Commission. In any event for the purpose of this opinion, we assume that a duty is imposed upon Kelly "to inspect ... the road system in Wayne County."
While governmental immunity may be an anachronism, it is a long recognized common law concept. The Tennessee Supreme Court has said it is for the Tennessee General Assembly and not the courts of this State to make changes in that concept. The General Assembly has responded with the passage of Chapter 345, Public Acts of 1973 (T.C.A. Sec. 29-20-101 et seq.). Chapter 345 is in derogation of the common law and must be strictly construed.
T.C.A. Sec. 29-20-205 provides in pertinent part:
Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury:
(4) Arises out of a failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property.
T.C.A. Sec. 29-20-102(2) defines an employee to "mean and include any official whether elected or appointed, officer, employee or servant, or any member of any board, agency, or commission (whether compensated or not), or any officer, employee or servant thereof, of a governmental entity, including the sheriff and his employees."
Immunity is not removed when the proximate cause of the injury is the employee's failure to inspect "any property." T.C.A. Sec. 29-20-205(4) is implicit and makes no exceptions for roads, bridges, or other property covered under T.C.A. Sec. 29-20-203 or Sec. 29-20-204.
Kelly, an employee of Wayne County, had a duty to inspect, according to his testimony, the bridges of Wayne County. If he had performed that duty, the defective bridge would have been discovered. The "negligent act or omission" proximately causing plaintiffs' injuries was Kelly's failure to perform his duty.
Plaintiffs' reliance on Sanford v. University of Utah, 26 Utah 2d 285, 488 P.2d 741 (1971), is misplaced. In Sanford, plaintiff's home was located at a lower elevation than the defendant University of Utah's land. Sometime prior to 1963, the University contracted with independent contractors to construct an engineering building and parking lot. During the construction, the natural drainage was changed. In June, 1963, plaintiff's home was flooded for which she received compensation. To allay her concern about future flooding, the president of the University wrote her regarding steps which had been taken to see that the flooding would not happen again. In 1967, plaintiff's home was again flooded. Plaintiff brought suit under Utah's Governmental Tort Immunity Act, which is similar to the Tennessee Governmental Tort Liability Act. The trial court found that the University had actual notice at least two years before plaintiff's home was flooded in 1967 "that a dangerous condition existed by reason of a public improvement; that President Fletcher's letter was evidence of such notice of the condition." Id. at 289, 488 P.2d at 743. On Appeal, the University urged that "[T.C.A. Sec. 29-20-205] 3 of the Act modifies [T.C.A. Sec. 29-20-203 and 29-20-204] and that under the Act a governmental entity is not liable for a defective or dangerous condition causing injury, unless the condition was caused by a negligent act or omission of an employee committed within the scope of his employment" and that since the "defective condition was not caused by any person under the supervision and control of the University," the University is not liable. Id. at 288, 488 P.2d at 742.
The Court, answering this contention, stated:
Since the waiver of immunity in Sec. [29-20-203 and 29-20-204] encompasses a much broader field of tort liability than merely negligent conduct of employees within the scope of their employment, the legislature could not have intended that [Sec. 29-20-205] including its exceptions should modify [Sec. 29-20-203 and 29-20-204] even though it be conceded that the negligent conduct of an employee might be involved in an action for injuries caused by the creation or maintenance of a dangerous or defective condition.
Id. at 292, 488 P.2d at 745. We agree that it is not necessary for an employee of a governmental entity to be guilty of a negligent act before liability attaches under either T.C.A. Sec. 29-20-203 or T.C.A. Sec. 29-20-204. Under T.C.A. Sec. 29-20-203, if injury is caused by a "defective, unsafe or dangerous condition of any street, alley, sidewalk, or highway owned and controlled by" the governmental entity and the governmental entity has the requisite "constructive and/or actual notice," then the governmental entity would be liable. Likewise,...
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