             IN THE COURT OF APPEALS
                   AT KNOXVILLE                          FILED
                                                         August 11, 1999

                                                        Cecil Crowson, Jr.
                                                         Appellate Court
                                                               Clerk


SYLVIA MILLER,             )      CAMPBELL COUNTY
                                    ) 03A01-9809-CV-00290
     Plaintiff-Appellee,            )
                                    )
                                    )
     v.                             ) HON. CONRAD TROUTMAN
                                    ) JUDGE
                                    )
CITY OF LAFOLLETTE,                 )
                                    )
     Defendant-Appellant.           ) AFFIRMED AND REMANDED




JON G. ROACH OF KNOXVILLE FOR APPELLANT

DAVID A. WINCHESTER OF LAFOLLETTE FOR APPELLEE




                               O P I N I O N




                                                  Goddard, P.J.




          This appeal from the Circuit Court of Campbell County

concerns liability under the Tennessee Governmental Tort

Liability Act.   The City of LaFollette, Tennessee, the Defendant-

Appellant, appeals the award of $6,500 to Sylvia Miller, the

Plaintiff-Appellee, for flooding damage to personal property at

her residence in LaFollette.
               The City presents four issues, which we restate as

follows:



                     1. Whether the Trial Court erred in not
                     apportioning fault to the Letners and their
                     predecessors in title, Ayres, Ltd.,
                     for an embankment on their property
                     which caused water to back up and
                     flood the residence of Ms. Miller.

                     2. Whether the Trial Court erred in
                     finding that the City of LaFollette
                     was at fault by installing drainage
                     tile and by allowing the property
                     at 401 West Beech Street to be
                     raised to create an embankment
                     which allowed for the retention of
                     storm water, thus causing the
                     flooding of Ms. Miller’s residence.


We affirm the judgment of the Trial Court.




               In November 1985, John and Sue Letner1 purchased

property at 403-405 Beech Street in LaFollette from Anchor Realty

Company.       Ayres, Ltd.2, which owned the property at 401 West

Beech Street, decided to place drainage tile in a portion of the

streambed that passes through its property.               The City, which has

a policy of installing drainage tile on private property if the

property owner purchases the tile, recommended 48-inch tile be

placed in the streambed.          Ayres purchased the tile, and the City

installed it.        After the tile was installed, the property at 401



      1
       The Letners were defendants at trial, but are not parties to this
appeal.
      2
          Ayres, Ltd. was owned by Tomi Ayres and Haskel Ayres.

                                         2
West Beech Street was filled with dirt to a depth of

approximately five feet.    The City maintains that at the time it

installed the 48-inch tile on the property at 401 West Beech

Street, it was unaware of any plans to put fill material on top

of the drainage tile.   Apparently, the Letners also decided to

have tile placed in the streambed across 403-405 West Beech

Street.




          In 1992 the Letners purchased the property at 401 West

Beech Street from Ayres.   That same year, the Letners rented the

property at 405 West Beech Street to Ms. Miller.




          During late winter and early spring of 1994, the City

replaced several collapsed drainage tiles in the Central Avenue

area of LaFollette, which is upstream from Ms. Miller’s residence

on West Beech Street.   Max Robinson, the public works supervisor

for the City of LaFollette and the City’s representative at

trial, testified that the City had replaced some collapsed tiles

under Central Avenue, which had experienced flooding of a couple

of feet deep on two prior occasions.   The City contends that it

did not change the natural drainage of any upstream surface

waters, but concedes that the replacement of the collapsed tile

may have caused water to flow more quickly downstream than it did

during the period of time the tile was collapsed.   Mr. Robinson

testified that the City did not consult with an engineer when it

                                3
decided to replace the drainage tiles under Central Avenue nor

did it inspect the downstream drainage system before installing

the new tiles or conduct a study of the downstream effects of the

work to be done.   He also acknowledged that there had not been a

flooding incident on Beech Street since 1983 or 1984 until the

one that flooded Ms. Miller’s home.   Mr. Robinson also admitted

that the City has a policy of installing drainage tile on private

property, if the property owner purchases the tile.




          On July 18, 1994, a severe thunderstorm struck

LaFollette, thereby sending a large quantity of water down the

drainage tile toward Ms. Miller’s residence on Beech Street.    The

water overwhelmed the drainage tile and flooded Ms. Miller’s

residence, thereby damaging her car as well as her personal

property inside the residence.   Ms. Miller testified that during

the approximately two years she had lived at the residence, she

had not experienced any water problems or flooding until the

flooding that occurred on July 18, 1994.   No flooding occurred on

Central Avenue on this date.




          The City called two expert witnesses, both licensed

professional engineers, to testify.   First, Clarence Bennett

testified that the dam on the Letners' property caused the

flooding of Ms. Miller's residence.    He also testified that it

would have been prudent for the City to obtain professional

                                 4
advice for the design of the structure used to replace the

collapsed tiles on Central Avenue.     Second, Dr. Bruce Tschantz,

a professor of civil and environmental engineering at the

University of Tennessee, is a professional engineer in the area

of hydrology.   He too stated that without the dam, there would

have been no flooding of Ms. Miller’s residence.    Dr. Tschantz

also stated that the City probably should have considered the

downstream effects of its work on Central Avenue.




          The Trial Court held that the Letners did not create

the problem “since the dam on Lot 401 was already constructed

when they bought the property” and that the City “caused the

problem and was at fault by installing a 48-inch tile under Lot

401 and by allowing this lot to be raised.”




          First, the City of LaFollette contends that

the Trial Court failed to apportion fault to the Letners or their

predecessors in interest, Ayres, Ltd., who had erected a dam on

its property which caused the rainfall to back up and flood Ms.

Miller's residence.   The City argues that the Letners not only

maintained the embankment or dam on their property but also added

fill dirt to it.     It asserts that had the dam not been on the

property, the water levels would have been so low that Ms.

Miller's car and the personal property in her residence would not

have been damaged.

                                 5
           Furthermore, the City argues that the Trial Court erred

in finding that the City of LaFollette was at fault for

installing a 48-inch tile under 401 West Beech Street and

allowing the level of this lot to be raised.    The City asserts

that it did not permit Ayers to place fill material on its

property, arguing that "there is no proof that the City had

undertaken to regulate the actions of a private property owner in

placing fill material on his property."     Also, the City maintains

that under Tennessee Code Annotated §§ 29-20-203 and 29-20-204,

immunity is removed only where a City that is shown to have

actual or constructive notice of the condition giving rise to the

injury.   The City argues that it did not have notice of a

dangerous or defective condition regarding any City-owned

structure.   It argues that the structures in the case sub judice

were owned by the Letners, not the city.    However, the City

admits that City crews did place the tile in the streambed at the

request of the property owner.




          Ms. Miller argues that the City was at fault for the

flooding damage to her personal property.    She contends that the

Trial Court did consider the apportionment of fault with regard

to the Letners and "simply apportioned all of the fault to the

City of LaFollette."   Furthermore, she asserts that pursuant to

Tennessee Code Annotated § 29-20-204, the City "had undertaken to

control the storm drainage system which extended from Central

                                 6
Avenue to West Beech Street where the Plaintiff resided . . . and

the City controlled the drainage system even over privately owned

lands by dictating the size of the drainage tiles to be

installed.”




          In accordance with Rule 13(d) of the Tennessee Rules of

Appellate Procedure, we review the findings of fact by the trial

court de novo with a presumption of correctness unless the

evidence preponderates against the judgment of the Trial Court.

However, a presumption of correctness does not attach to the

Trial Court's conclusions of law.    Ganzevoort v. Russell, 949

S.W.2d 293, 296 (Tenn. 1997).




          Neither the complaint nor the amended complaint states

that this action is brought against the City pursuant to

Tennessee Code Annotated § 29-20-101, the Tennessee Governmental

Tort Liability Act.   However, because this Act is the only

authority for such an action against the City, it is considered

the basis for this suit.   The Tennessee Governmental Tort

Liability Act grants immunity, subject to certain statutory

exceptions, to governmental entities such as the City of

LaFollette.   See Tenn. Code Ann. § 29-20-201.



          Tennessee Code Annotated § 29-20-201, provides in

pertinent part:

                                 7
          (a) 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.

                              ****

          (c) When immunity is removed by this chapter any
     claim for damages must be brought in strict compliance
     with the terms of this chapter.




          Governmental entities are immune from liability for

discretionary acts under Tennessee Code Annotated § 29-20-205,

which 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:
          (1) Arises out of the exercise or performance or
     the failure to exercise or perform a discretionary
     function, whether or not the discretion is abused.




           In 1992, the Tennessee Supreme Court adopted the

“planning-operational test” to determine whether an action or

inaction by a governmental entity is considered discretionary.

Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992).     In

Bowers, the Court discussed the difference between planning and

operational:



     If a particular course of conduct is determined after
     consideration or debate by an individual or group
     charged with the formulation of plans or policies, it

                                8
     strongly suggests the result is a planning decision.
     These decisions often result from assessing priorities;
     allocating resources; developing policies; or
     establishing plans, specifications, or schedules.


          On the other hand, a decision resulting from a
     determination based on preexisting laws, regulations,
     policies, or standards, usually indicates that its
     maker is performing an operational act. Similarly
     operational are those ad hoc decisions made by an
     individual or group not charged with the development of
     plans or policies. These operational acts, which often
     implement prior planning decisions, are not
     “discretionary functions” within the meaning of the
     Tennessee Governmental Tort Liability Act.




Bowers, 826 S.W.2d at 431.




          Another factor in determining whether the act is

operational or planning is whether the decision is the type

properly reviewable by the courts.   Bowers, 826 S.W.2d at 431.

“[T]he discretionary function exception was intended to prevent

the use of tort actions to second-guess what are essentially

executive or legislative decisions involving social, political,

economic, scientific, or professional policies or some mixture of

these policies.”   Doe v. Coffee County Board of Education, 852

S.W.2d 899, 907 (Tenn. Ct. App. 1992) (citations omitted).




          The Trial Court based its holding on the City’s

installation of drainage tile under 401 Beech Street and the

subsequent raising of the level of the lot.   Although the City of

                                9
LaFollette had no written procedure regarding the installation of

drainage tile on private property, the evidence adduced at trial

indicated a clear policy by the City to install tile on private

property.     The City would not only install the drainage tile on

private property but also would determine the size of the tile to

be installed.




            Although the Trial Court mentions in its findings the

drainage from the Central Avenue area downward to the Beech

Street area, it does not specifically conclude that the

replacement of drainage tiles in the Central Avenue area

contributed to the flooding of Ms. Miller’s residence.    We find,

however, that the evidence indicates that the City’s replacement

of drainage tile in the Central Avenue area contributed to the

flooding of Ms. Miller’s residence.




            By applying the “planning-operational test” to the

facts of this case, we find that the City of LaFollette’s failure

to seek professional advice regarding the replacement of the

collapsed tiles in the Central Avenue area and its failure to

check the status of the drainage system downstream from the

Central Avenue area were operational decisions, not discretionary

ones.   The City knew that the Central Avenue area of LaFollette

had experienced flooding on two occasions before it undertook to

replace the drainage tile in that area in the months immediately

                                 1 0
preceding the flooding of Ms. Miller’s residence.         However, the

City did not seek design advice for the replacement of tiles or

determine how such changes upstream from Ms. Miller’s residence

would affect the drainage of water downstream.




            We are unpersuaded by the City’s argument that Ayres

or the Letners are responsible.         The fill dirt that the City

maintains created a dam on the property at 401 West Beech Street

had been placed there several years before the flooding occurred

in 1994.   The evidence indicates that no flooding occurred on

Beech Street until the replacement of the drainage tile on

Central Avenue just months before, and there was no flooding on

Central Avenue the day Ms. Miller’s residence was flooded.         Ms.

Miller testified that she had not experienced any flooding

problems during the two years that she had lived at her residence

on Beech Street, and Mr. Letner testified that he had not seen

the water out of its banks before the flooding on July 18, 1994.

Moreover, Mr. Robinson, the City’s representative, testified that

no flooding had occurred on Beech Street since 1983 or 1984.




                Finally, the type of question involved in this

case is based more on negligence than on social, political, or

economic considerations, which is another factor in our

determination that the City of LaFollette was not immune under

Tennessee Code Annotated § 29-20-205.

                                  1 1
          Accordingly, we find that the evidence does not

preponderate against the Trial Court’s judgment that the City of

LaFollette is responsible for the flooding damage to Ms. Miller’s

personal property at her residence.




          For the foregoing reasons, the judgment of the Trial

Court is affirmed and the cause remanded for collection of the

judgment and costs below.   Costs of appeal are adjudged against

the City of LaFollette and its surety.



                               _______________________________
                               Houston M. Goddard, P.J.


CONCUR:



________________________________
Herschel P. Franks, J.



________________________________
H. David Cate, Sp.J.




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