Sanders v. State

• Court: Court of Appeals of Tennessee
• Writing for the Court: CRAWFORD
• Citation: 783 S.W.2d 948
• Parties: Lawrence A. SANDERS, and wife Pamela Sanders, individually and as parents and next friends of Andrew Sanders, Plaintiffs-Appellees, v. STATE of Tennessee, Defendant-Appellant.
• Decision Date: 20 September 1989

Page 948

783 S.W.2d 948 Lawrence A. SANDERS, and wife Pamela Sanders, individually
and as parents and next friends of Andrew Sanders,
Plaintiffs-Appellees,
v.
STATE of Tennessee, Defendant-Appellant. Court of Appeals of Tennessee,
Western Section at Nashville. Sept. 20, 1989.
Application for Permission to Appeal
Denied by Supreme Court, Jan. 2, 1990.

Jon E. Jones, Cookeville, for plaintiffs-appellees.

Charles W. Burson, Atty. Gen. and Reporter, George H. Coffin, Jr. Asst. Atty. Gen., for defendant-appellant.

CRAWFORD, Judge.

Defendant, State of Tennessee, appeals from a judgment rendered by the Claims Commission awarding claimant Andrew Sanders $33,000.00 and his parents, claimants Lawrence and Pamela Sanders $12,000.00.

The facts are virtually undisputed. On May 25, 1987, Andrew Sanders, the nine year old son of Lawrence and Pamela Sanders, was climbing on some wooden monkey bars at a playground area in the Cumberland Mountain State Park near Crossville. He apparently lost his hold on the bar while climbing, fell to the ground and struck his head on an exposed concrete footing which held one of the monkey bar supports in the ground. The concrete footing had a protruding nub and Andrew's head struck this nub causing a depressed fracture of his skull.

Andrew was treated initially at Crossville Hospital, and was later taken by ambulance to Vanderbilt Hospital in Nashville. Subsequently, Andrew underwent surgery in which some bone fragments were removed from his head resulting in a small area left unprotected by the skull.

The jurisdiction of the Tennessee Claims Commission was invoked pursuant to T.C.A. Sec. 9-8-307(a)(1)(C) (1987) which states:

9-8-307. Jurisdiction--Claims--Waiver of actions--Standard for tort liability--Damages--Immunities--Definitions--Transfer of claims.--(a)(1) The

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commission or each commissioner sitting individually shall have exclusive jurisdiction to determine all monetary claims against the state falling within one (1) or more of the following categories:

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(C) 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;

The evidence established and the state virtually conceded that the exposed concrete footing was a dangerous condition and injury therefrom was foreseeable.

The sole issue on appeal is whether the Commissioner erred in concluding that the proper state officials had notice of a dangerous condition as required by T.C.A. Sec. 9-8-307(a)(1)(C). The Commissioner found that requisite notice had been given to the proper state officials and we quote the pertinent findings:

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4. The crucial question in this set of facts revolves around whether proper State officials had adequate notice of the dangerous condition in sufficient time to have taken some action. The simplest analysis of the contested facts is as follows: There was a one and one-half to one and three-quarter protrusion of the concrete footing above the surface of the ground with a nub on it. This condition came into existence one of two ways. Either it was created at the time the footing was first poured, or the ground was worn away around it leaving it exposed. If the exposed footing came into existence when it was first poured, the State had actual notice of this condition when they completed the pouring thereby creating a dangerous condition. There has been sufficient time for the State officials to have acted. In the alternative, this condition came into existence over a period of time when the soil wore away from around the footing (which is assumed to have initially been even with or below the surface of the ground). In considering this, the Commission observes from commonsense observation of soil erosion that soil erodes when it is bare and is exposed to wind, water, or scuffing feet (for playground). If the soil is covered with a mulch such as wood chips which were used on this playground, then the wood chips may wear away, but so long as an adequate layer of wood chips is maintained, the soil remains. Since the soil wore away there was negligent maintenance and since wood chips were on site, the State employee who first put down wood chips...