                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                August 28, 2014 Session

        DENNIS TURNER ET AL. v. CITY OF BEAN STATION ET AL.

          Interlocutory Appeal from the Circuit Court for Grainger County
                       No. 8862-I   Ben W. Hooper, II, Judge


            No. E2013-02630-COA-R9-CV-FILED-DECEMBER 30, 2014


Dennis Turner was injured while playing softball in a charity tournament at Marvin Rich
Field in Bean Station. He sued the City of Bean Station, among other defendants, alleging
that the City negligently failed to properly maintain the pitcher’s mound, pitcher’s rubber,
and the field as a whole, resulting in his injury. The City moved for summary judgment,
arguing that its governmental immunity is not removed by the Governmental Tort Liability
Act (GTLA), which removes immunity for “any injury caused by the dangerous or defective
condition of any public building, structure, dam, reservoir or other public improvement
owned and controlled by [a] governmental entity.” Tenn. Code Ann. § 29-20-204(a)(2012)
(emphasis added). The City presented proof establishing that it does not own Marvin Rich
Field. The trial court denied the motion but granted permission for an interlocutory appeal.
We reverse the trial court’s judgment and grant the City’s motion for summary judgment.

             Tenn. R. App. P. 9 Interlocutory Appeal by Permission;
      Judgment of the Circuit Court Reversed; Case Dismissed and Remanded

C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and T HOMAS R. F RIERSON, II, JJ., joined.

Nathan D. Rowell and Brian R. Bibb, Knoxville, Tennessee, for the appellant, City of Bean
Station.

No appearance by or on behalf of the appellees, Dennis Turner and Rita Turner.
                                                  OPINION

                                                        I.

        According to the complaint, plaintiff1 was playing softball in a charity tournament on
August 14, 2010. He was pitching. A ball hit by a batter bounced off the pitcher’s rubber,
a small strip of rubber on the mound. The softball hit plaintiff in the face, causing serious
injury.

       Plaintiff and his wife Rita Turner brought this negligence action against the City, the
Mooresburg/Bean Station Little League, and four other individuals alleged to have been
responsible for the maintenance of Marvin Rich Field. Plaintiff’s theory was that the
pitcher’s rubber should have been pounded into the ground so it was flush with the dirt, but
instead was sticking up above ground level somewhat, creating a defective and dangerous
condition.

         The City moved for summary judgment, arguing that it was immune from suit under
the sovereign immunity doctrine. The City argued that the GTLA removes immunity only
for “any injury caused by the dangerous or defective condition of any public building,
structure, . . . or other public improvement owned and controlled by [a] governmental
entity,” Tenn. Code Ann. § 29-20-204(a) (emphasis added), and that the City neither owned
nor controlled Marvin Rich Field. The City presented evidence establishing that the property
was owned by the Tennessee Valley Authority, which had granted the City a license for
occupancy and “solely for recreational use as a ball park.” The City “leased” the license to
the little league, which was responsible for maintenance and upkeep of the field and grounds.
At the time plaintiff was hurt, the little league had “subleased” the license to defendant Gina
Harris, who was in charge of the charity softball tournament.

        After discovery and a hearing, the trial court denied the City’s motion for summary
judgment.2 The City requested permission to take an interlocutory appeal under Tenn. R.
App. P. 9, which the trial court and this Court granted. Plaintiff was represented by counsel
in the trial court, but did not file an appellate brief or appear for oral argument. The only
issue before us on this appeal is whether the trial court erred in refusing to grant the City
summary judgment.



        1
            When we refer to the plaintiff in the singular, we are referring to Mr. Turner.
        2
         The court also denied the little league’s motion to dismiss. The little league’s liability, if any, is
not before us on this appeal.

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                                             II.

       The underlying issue on appeal is whether a governmental entity can be liable under
the GTLA if it does not own or control property on which a third party is injured. The trial
court determined that there is no genuine issue of material fact with respect to this issue. “
We review a trial court’s decision on a motion for summary judgment de novo with no
presumption of correctness. Issues of statutory construction are also reviewed de novo.”
Harris v. Haynes, 445 S.W.3d 143, 146 (Tenn. 2014) (internal citation omitted).

                                             III.

       Because the complaint was filed after July 1, 2011, Tenn. Code Ann. § 20-16-101
(Supp. 2014) applies to our analysis of summary judgment in this case. That statute provides:

              In motions for summary judgment in any civil action in
              Tennessee, the moving party who does not bear the burden of
              proof at trial shall prevail on its motion for summary judgment
              if it:

              (1) Submits affirmative evidence that negates an essential
              element of the nonmoving party’s claim; or

              (2) Demonstrates to the court that the nonmoving party’s
              evidence is insufficient to establish an essential element of the
              nonmoving party’s claim.

       The issue before us involves construction of the GTLA. As the Supreme Court
recently stated,

              When determining the meaning of statutes, we follow the
              standard rules of statutory construction. Our primary goal is to
              carry out legislative intent without broadening or restricting the
              statute beyond its intended scope. We presume that every word
              in a statute has meaning and purpose and that each word’s
              meaning should be given full effect as long as doing so does not
              frustrate the General Assembly’s obvious intention. Words
              must be given their natural and ordinary meaning in the context
              in which they appear and in light of the statute’s general
              purpose. When a statute’s meaning is clear, we apply the plain
              meaning without complicating the task and enforce the statute

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              as written.

              The statute at issue in this appeal is contained within the GTLA,
              which was enacted in 1973 and which provides a comprehensive
              scheme governing tort actions against governmental entities.
              Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn.
              1997). The GTLA reaffirms the longstanding common law rule
              of sovereign immunity, stating, 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.2013).           After
              reaffirming governmental immunity generally, the GTLA
              removes governmental immunity in limited and enumerated
              instances. Id. §§ 29–20–202 to –205 (2012); see also Hawks,
              960 S.W.2d at 14.

Harris, 445 S.W.3d at 146-47 (internal quotation marks, citations, and heading omitted).

        As already noted, the section of the GTLA at issue in this case removes governmental
immunity for “any injury caused by the dangerous or defective condition of any public
building, structure, . . . or other public improvement owned and controlled by [a]
governmental entity.” Tenn. Code Ann. § 29-20-204(a)(emphasis added). This Court has
observed on several occasions that an essential element of a premises liability claim under
the GTLA requires a plaintiff to prove that “the governmental entity owns and controls the
location or instrumentality alleged to have caused the injury.” Benn v. Pub. Bldg. Auth. of
Knox Cnty., No. E2009-01083-COA-R3-CV, 2010 WL 2593932 at *2 (Tenn. Ct. App. E.S.,
filed June 28, 2010); Watts v. Morris, No. W2008-00896-COA-R3-CV, 2009 WL 1228273
at *5 (Tenn. Ct. App. W.S., filed May 6, 2009) (“For immunity to be removed pursuant to
the GTLA, the location that allegedly caused the accident must be owned and controlled by
the governmental entity being sued.”); Burgess v. Harley, 934 S.W.2d 58, 63 (Tenn. Ct. App.
1996) (an “essential ingredient” of action under section 203(a) of the GTLA is “the local
government must own and control the location or instrumentality alleged to have caused the
injury”); Harris v. Williamson Cnty., 835 S.W.2d 588, 590 (Tenn. Ct. App. 1992) (affirming

                                             -4-
dismissal where “the evidence does not preponderate against the trial court’s conclusion that
Williamson County did not own or control the traffic signs in question”). In Petty v. City of
White House, No. M2008-02453-COA-R3-CV, 2009 WL 2767140 (Tenn. Ct. App. M.S.,
filed Aug. 31, 2009), we held the GTLA removed governmental immunity where it was
demonstrated that the municipality owned and controlled property containing two sports
fields, bleachers, and a concession stand, finding the fields to be a “public improvement”
under Tenn. Code Ann. § 29-20-204(a).

       In this case, the City filed the affidavit of its mayor, who testified that,

              The City of Bean Station does not own the property known as
              Marvin Rich Field.

              The Mooresburg/Bean Station Little League is neither operated
              nor controlled by the City of Bean Station. At the time Plaintiff
              was injured, the City of Bean Station subleased its recreational
              use right to the Mooresburg/Bean Station Little League for
              recreational use of Marvin Rich Field as a ballpark.

        At the end of the summary judgment hearing, the trial court stated that “there’s no
question TVA owns the property.” The City filed a copy of the “license agreement for
occupancy and use of TVA land” whereby TVA granted the City a license with respect to the
property at issue “[s]olely for recreational use as a ball park, associated with Bean Station
Little League, including concessions and restrooms.” The license agreement gave the City
the right “to make improvements, erect structures and install equipment in or upon the
premises, upon receipt of advance written approval from TVA[.]” TVA did not charge the
City for the license. The agreement was terminable at any time by either party by giving 30
days written notice. It further provides that “[t]he Licensee agrees that it does not, and shall
not, claim at any time any interest or estate of any kind or extent whatsoever in the premises,
by virtue of this license or its occupancy or use hereunder.” (Emphasis added). As this
Court has observed,

              “A ‘license,’ with respect to real estate, is an authority to do a
              particular act or series of acts on another’s land without
              possessing any estate therein.” Barksdale v. Marcum, 7 Tenn.
              App. 697, 708, cert. den., (1928). It “is generally revocable at
              the will of the licensor.” Id. As the Barksdale court pointed
              out, a license generally does not create an interest in land. See
              also United States v. Anderson County, Tenn., 575 F. Supp.
              574, 578 (E.D. Tenn. 1983).

                                              -5-
Lee Hwy. & Assocs, L.P. v. Pryor Bacon Co., No. 03A01-9507-CV-00237, 1995 WL
619941 at *3 (Tenn. Ct. App. E.S., filed Oct. 19, 1995).

       The City answered plaintiff’s interrogatories. Four of the interrogatories and the
City’s answers are as follows:

              INTERROGATORY NO. 1: Please state who is responsible for
              the maintenance of Marvin Rich Ballfield during the time the
              City of Bean Station has used the field, including address and
              phone number.

              ANSWER: Bean Station/Mooresburg Little League, 809
              Whitehead Lane, Bean Station, TN 37708

              INTERROGATORY NO. 2: Has the City of Bean Station, its
              agents, assignees, lessees or representatives ever performed any
              maintenance or did any repairs to Marvin Rich Ballfield? If so,
              please state the type of maintenance and/or repair, the
              regularity/frequency, when it was done and by whom.

              ANSWER: The City of Bean Station never completed any work
              at Marvin Rich Field prior to January, 2012.

              INTERROGATORY NO. 3: Did the City of Bean Station, its
              agents, assignees, lessees or representatives perform any
              maintenance or repairs to Marvin Rich Ballfield in August
              2010?

              ANSWER: No.

              INTERROGATORY NO. 4: Did the City of Bean Station lease
              or assign the use of Marvin Rich Ballfield to other persons or
              entities. If so, please state what persons or entities and when?

              ANSWER: Yes. The City leased the Marvin Rich Field to the
              Bean Station/Mooresburg Little League on November 20, 2005.

      Based on the undisputed proof in the record, the City has demonstrated that plaintiff
cannot establish an essential element of his premises liability claim, i.e., whether the City

                                             -6-
owned and controlled the property or public improvement alleged to be dangerous and
defective. Consequently, the GTLA does not remove the City’s governmental immunity.

                                           IV.

        The trial court’s judgment denying the City’s motion for summary judgment is
reversed. The plaintiff’s action against the City of Bean Station is dismissed. Costs on
appeal are assessed to the appellees, Dennis Turner and Rita Turner. The case is remanded
for further proceedings, if any, with respect to the remaining defendants.




                                         _____________________________________
                                         CHARLES D. SUSANO, JR., CHIEF JUDGE




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