                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 March 26, 2013 Session

 JAMIE DICKERSON, ET AL. v. RUTHERFORD COUNTY, TENNESSEE

            Direct Appeal from the Circuit Court for Rutherford County
                        No. 61355     Royce Taylor, Judge


                 No. M2012-01916-COA-R3-CV - Filed April 11, 2013


Plaintiffs appeal the trial court’s award of summary judgment to Rutherford County on the
basis of foreseeability and comparative fault in this negligence action under the
Governmental Tort Liability Act. We reverse and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

John W. Rodgers and James Patrik Barger, Murfreesboro, Tennessee, for the appellants,
Jamie Dickerson and Jeremiah Dickerson.

Roger W. Hudson, Murfreesboro, Tennessee, for the appellee, Rutherford County,
Tennessee.

                                        OPINION

        This lawsuit arises from injuries sustained by Plaintiff Jamie Dickerson (Ms.
Dickerson) when she suffered a fall in the parking lot of Lane Agri Park (“the Park”) in
Murfreesboro in November 2009. In September 2010, Ms. Dickerson and her husband,
Jeremiah Dickerson (Mr. Dickerson; collectively, “the Dickersons”) filed a complaint for
damages against Rutherford County (‘the County”) in the Circuit Court for Rutherford
County. In their complaint, the Dickersons asserted that, on November 17, 2009, at
approximately 8:30 p.m., Ms. Dickerson and her children exited the Park building to return
to her vehicle after attending an event scheduled for home-schooled children. They alleged
that the vehicle was parked in the first parking spot nearest the building, next to the curb
which was on the left and in front of the vehicle. The Dickersons alleged that when Ms.
Dickerson stepped off the curb into the parking lot, she stepped into a hole in the parking lot
asphalt, fracturing and dislocating her ankle. They alleged that the proximity of the hole to
the curb and inadequate lighting in the parking lot made the hole difficult to see, and that
there was nothing warning Park visitors or invitees of a hole in the asphalt. The Dickersons
asserted that the County owed Plaintiff a duty to use ordinary care to maintain the Park
premises in a safe condition to avoid injury to visitors; that the hole in the parking lot created
an unsafe condition that presented an unreasonable risk of harm; and that the County
accordingly breached its duty to maintain the parking lot in a safe condition. They submitted
that the County either caused the unsafe condition or knew or, in the exercise of reasonable
care, should have known of the existence of a dangerous condition long enough to have
discovered and either corrected it or provide adequate warning. The Dickersons alleged that
Ms. Dickerson’s injuries were proximately caused by the negligence of the County. They
further asserted that Mr. Dickerson had incurred damages for loss of consortium. They
prayed for damages arising from medical expenses, physical pain and suffering, loss of
earning, loss of enjoyment of life, and loss of consortium in an amount to be determined at
trial.

         The County answered in October 2010, denying that there was a hole or unsafe
condition in the parking lot. The County asserted that the parking lot area was lighted and
that all conditions were open and obvious to anyone on the property. The County denied any
allegation of negligence. It further asserted the defenses of failure to state a claim,
comparative fault, and immunity pursuant to the Governmental Tort Liability Act (“GTLA”).
It also asserted that the nature and extent of the County’s liability, if any, was governed by
the GTLA.

        In June 2012, the County moved for summary judgment, asserting there were no
undisputed issues of material fact and that it was entitled to a judgment as a matter of law.
The County also filed a statement of undisputed facts and memorandum of law; the
depositions of the Dickersons; an affidavit of Dan Goode (Mr. Goode), the safety coordinator
for the County; the deposition testimony of John Benton Mankin, Jr. (Mr. Mankin), the
facilities director; and the deposition testimony of Cheryl Hammers (Ms. Hammers), who
also home schools her children and attends events with them at the Park. The County
asserted that it was undisputed that Ms. Dickerson and her children had visited the Park and
the main building numerous times to attend various meetings and classes, and that she had
parked in the parking lot in front of the main building both during the day time and at night
prior to the day of the accident. The County asserted that Ms. Dickerson was familiar with
the shrubbery located near the parking space in which she chose to park; that she was
familiar with the lighting in the parking lot; that she had never experienced any difficulties
in the parking lot or reported any problems with walking across Park property to the County
or anyone at the Park; and that she was familiar with the light posts along the sidewalk area

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leading to the main building and had never complained about a lack of lighting. The County
also asserted that Ms. Dickerson could not testify with respect to the depth of the hole or
“dip” she allegedly stepped into. It further stated that Ms. Dickerson conceded that she did
not observe the dip while entering the building, although she claimed to have traversed the
same path to and from the building. The County asserted that Ms. Dickerson claimed the
area was “pitch-black” when she left the main building on the night she was injured and that
“[s]he confirmed that, though she could not see where she was stepping as she left the
sidewalk, she proceeded to make the step anyway.” The County asserted that Ms. Dickerson
“admitted that she could have chosen another route by walking around the bushes and getting
to the driver’s door of her vehicle from the backside, away from the dip.” The County
further asserted that the evidence demonstrated that there was nothing obstructing Ms.
Dickerson’s vision of the parking space when she parked in it on the evening of the accident,
and that she “simply did not look at the space about which she now complains.” The County
further asserted that Ms. Dickerson had no knowledge of how long the alleged condition
existed, and that she did not know of any person that put the County on notice of an alleged
dangerous condition. The County asserted that its immunity from suit was not removed in
this case where there was no evidence that it had actual or constructive notice of any alleged
dangerous or defective condition. It further asserted that Ms. Dickerson could not testify
with any certainty that she knew what caused her injury where she testified that she “put two
and two together” and assumed that some condition in the parking lot caused her to fall. The
County further asserted that, assuming immunity was removed under the GTLA, Ms.
Dickerson’s injuries were not foreseeable where the County had no knowledge of “any
condition regarding this parking space.” It further asserted that any condition of the space
was open and notorious and obvious to anyone. The County asserted that Ms. Dickerson
testified that she walked directly through the same area on her way into the building, that she
did not look at the pavement, and that her claim that she must have walked over the dip on
her way into the building was “self serving.” The County asserted that there was no duty
upon it to Ms. Dickerson because there was no evidence of a dangerous condition and no
evidence that any such condition posed a foreseeable harm of injury. The County
additionally asserted that Ms. Dickerson was at least fifty percent at fault for her injuries
where she chose to step into what she called a “pitch-black” area rather than take another
route to her car or choosing to park in another area of the parking lot.

       The Dickersons responded to the County’s motion in July 2012. In their response, the
Dickersons asserted that many of the facts alleged by the County were in dispute and that the
County had failed to meet its burden to negate an essential element of Ms. Dickerson’s claim.
The Dickersons asserted that Ms. Hammer testified that she noticed the hole in the parking
lot near the main building a month or two before Ms. Dickerson fell, and that the County
accordingly had constructive notice of the hole and should have discovered it in the exercise
of reasonable care. The Dickersons further asserted that the “open and obvious” condition

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does not excuse a premises owner from liability, but that the County’s duty must be
considered in light of the foreseeability and gravity of harm. The Dickersons asserted that
it was foreseeable that a park visitor would park in a parking space near the main building
and that an injury would occur there. They asserted that, because the parking spot was a
“prime” spot near the main building, it was highly foreseeable that someone would park there
and thus the County had a higher duty to take measures to prevent an injury there. The
Dickersons further asserted that the County’s assertion that Ms. Dickerson was at least fifty
percent at fault was unsubstantiated.

        Following a hearing on July 19, 2012, the trial court granted the County’s motion for
summary judgment on the basis that the County “could not have reasonably anticipated that
Plaintiff would have stepped off the sidewalk into an area she knew was ‘pitch black.’” The
trial court additionally determined that the facts and reasonable inferences permitted a
reasonable person to conclude only that Ms. Dickerson was at least equally at fault for
causing her accident. The trial court entered summary judgment in favor of the County and
dismissed the Dickersons’ complaint. The Dickersons filed a timely notice of appeal to this
Court.

                                      Issue Presented

        The sole issue presented by the Dickersons on appeal, as slightly reworded, is whether
the trial court erred by awarding summary judgment to the County. The County presents the
following additional issues, as slightly reworded:

       (1)    Whether sovereign immunity is removed in this case.

       (2)    If sovereign immunity is removed, whether the County is “responsible
              for the accident and injury to the Plaintiff.”

       (3)    If sovereign immunity is removed and the County is liable, what is the
              percentage of fault that should be assessed to Ms. Dickerson?

                                    Standard of Review

       We review a trial court’s award of summary judgment de novo, with no presumption
of correctness. When reviewing an award of summary judgment, we must consider the
evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in that party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.
2008) (citations omitted). Summary judgment is appropriate only where the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits

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... show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Id. at 83 (quoting Tenn. R. Civ. P. 56.04; accord
Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn. 2000)). The burden of persuasion
is on the moving party to demonstrate, by a properly supported motion, that there are no
genuine issues of material fact and that it is entitled to judgment as a matter of law. Id.
(citing see Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); McCarley v. W.
Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 215
(Tenn. 1993)). A defendant moving for summary judgment on the basis of an affirmative
defense shifts the burden of production to the nonmoving party by asserting undisputed facts
that demonstrate the existence of that affirmative defense. Riddle v. Carlton, No.
W2011–02145–COA–R3–CV, 2012 WL 1948870, at *2 (Tenn. Ct. App. May 31, 2012)(no
perm. app. filed)(citing Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 9 n. 6 (Tenn. 2008)).

                                         Discussion

       In this case, the trial court awarded summary judgment to the County upon
determining 1) that the County “could not have reasonably anticipated that [Ms. Dickerson]
would have stepped off the sidewalk into an area she knew was ‘pitch black[,]’” and 2) that
Ms. Dickerson was at least fifty percent at fault. We turn first to whether the trial court
erred by awarding summary judgment to Rutherford County upon determining that, as a
matter of law, Ms. Dickerson’s injury was not foreseeable.

       Negligence is not “presumed by the mere happening of an injury or accident.”
Friedenstab v. Short, 174 S.W.3d 217, 219 (Tenn. Ct. App. 2004)(quoting Brackman v.
Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App. 1971)). The plaintiff in a premises liability
action must prove the existence of a dangerous or defective condition that

       (1) was caused or created by the owner, operator, or his agent, or (2) if the
       condition was created by someone other than the owner, operator, or his agent,
       there must be actual or constructive notice on the part of the owner or operator
       that the condition existed prior to the accident.

Martin v. Washmaster Auto Center, USA, 946 S.W.2d 314, 318 (Tenn. Ct. App.
1996)(citations omitted). Constructive knowledge may be demonstrated by proving that “the
dangerous or defective condition existed for such a length of time that the defendant, in the
exercise of reasonable care, should have become aware of such condition.” Id. (citing
Simmons v. Sears, Roebuck and Co., 713 S.W.2d 640, 641 (Tenn. 1986)). The notice
requirement may also be met by proving that the Defendant’s method of operation resulted
in a foreseeable hazardous situation. Id.



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       The risk of harm is foreseeable when ““a reasonable person could foresee the
probability of its occurrence or if the person was on notice that the likelihood of danger to
the party to whom is owed a duty is probable.”” Downs ex rel. Downs v. Bush, 263 S.W.3d
812, 820 (Tenn. 2008)(citations omitted)(quoting West v. E. Tenn. Pioneer Oil Co., 172
S.W.3d 545, 551 (Tenn. 2005)(quoting Doe v. Linder Constr. Co, 845 S.W.2d 173 (Tenn.
1992))). The foreseeability of harm is to be determined as of the time the acts or omissions
alleged to be negligent occurred. Doe v. Linder Const. Co., Inc., 845 S.W.2d 173, 178 (Tenn.
1992). The plaintiff must demonstrate that the injury sustained was “a reasonably
foreseeable probability, not just a remote possibility, and that some action within the
[defendant’s] power more probably than not would have prevented the injury.” Id.

      In this case, the County does not contend that it does not have a duty to make the Park
parking lot reasonably safe. Rather, the trial court determined, as a matter of law, that the
County did not owe a duty to Ms. Dickerson because it could not have foreseen that she
would have stepped off the curb to enter her car in an area that was dark. We must disagree.

        It is undisputed in this case that Ms. Dickerson fell when she stepped off the curb into
the parking lot to enter her vehicle, that Ms. Dickerson’s vehicle was parked in the parking
space nearest the main building of the Park, and that the parking space was adjacent to the
curb. It also is undisputed that the incident occurred while the Park was open, after an event
held for children. Viewing the facts in a light most favorable to the Dickersons, the
nonmoving party, Ms. Dickerson stepped into a hole or depression in the parking lot when
she stepped off the curb. Notwithstanding the County’s argument that Ms. Dickerson could
have chosen to park in a different parking spot, it was eminently foreseeable that a Park
visitor would park in the parking spot nearest the building, particularly when she anticipated
returning to her car after dark after participating in a regularly scheduled meeting or event.
As Ms. Hammer stated in her deposition, the parking spots nearest the building were favored
by visitors. It also is foreseeable that a Park visitor would step off the sidewalk to approach
the driver’s side door of her vehicle rather than walking around shrubbery to approach her
vehicle from the rear in the dark. In this case, the County reasonably should have been aware
of the probability that a Park visitor would park in a parking space nearest the building
during evening hours, and that she would approach her car by stepping off the curb near the
driver’s side of the vehicle. We accordingly reverse summary judgment in favor of the
County on the basis of foreseeability in the context of duty.

        We turn next to the trial court’s award of summary judgment to the County based on
its determination that Ms. Dickerson was at least fifty percent at fault for her injuries. The
comparative fault of the parties is generally a question of fact for the trier of fact. E.g.,
Green v. Roberts, No. M2012–00214–COA–R3–CV, 2012 WL 4858992, at *4 (Tenn. Ct.
App. Oct. 11, 2012), perm. app. denied (Tenn. Feb. 12, 2013)(citations omitted). Summary

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judgment on the basis of a plaintiff’s comparative fault is appropriate only where reasonable
minds could conclude only that the fault of the plaintiff was at least as great as the fault of
the defendant. Id. (citation omitted). The trial court in this case determined that no
reasonable jury could conclude that Ms. Dickerson was not at least fifty percent at fault for
her injuries because she unreasonably stepped into the dark parking lot. In its brief, the
County asserts that Ms. Dickerson “would have never encountered the dip if she had simply
gone around and come up from the back of the truck,” and that no reasonable jury could find
that Ms. Dickerson was not at least fifty percent at fault for failing to exercise this option.
However, as noted above, it is undisputed in this case that Ms. Dickerson fell as she stepped
off the curb into the first parking spot nearest the main Park building. We also note that Ms.
Hammer testified in her deposition that the parking space was difficult to navigate because
of the shrubbery surrounding the area. Under the circumstances of this case, it is within the
province of the trier of fact to determine the comparative fault of the parties.

       We next turn to the County’s assertion that sovereign immunity is not removed in this
case. In its motion for summary judgment and its brief to this Court, the County submits that
its immunity is not removed under the GTLA because there is no evidence that it had actual
or constructive notice of any dangerous or defective condition. The GTLA provides, in
relevant part:

               (a) Immunity from suit of a governmental entity is removed 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 such governmental entity.
               (b) Immunity is not removed for latent defective conditions, nor shall
       this section apply unless constructive and/or actual notice to the governmental
       entity of such condition be alleged and proved in addition to the procedural
       notice required by § 29-20-302 [repealed].

Tenn. Code Ann. § 29-20-204(2012). Accordingly, a plaintiff in an action under the GTLA
is required to allege and prove that the governmental entity had actual or constructive notice
of the alleged dangerous or defective condition. Hawks v. City of Westmoreland, 960 S.W.2d
10, 15 (Tenn. 1997).

       Constructive knowledge is defined as ““information or knowledge of a fact imputed
by law to a person (although he may not actually have it), because he could have discovered
the fact by proper diligence, and his situation was such as to cast upon him the duty of
inquiring into it.”” Id. (quoting Kirby v. Macon County, 892 S.W.2d 403, 409 (Tenn.1994)
(quoting Black’s Law Dictionary, 1062 (6th ed.1990))). “Applying that definition, a
governmental entity will be charged with constructive notice of a fact or information, if the

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fact or information could have been discovered by reasonable diligence and the governmental
entity had a duty to exercise reasonable diligence to inquire into the matter.” Id.

        Based upon our review of the record, summary judgment on the basis of notice was
not appropriate in this case. The County does not submit that it does not have a duty to
exercise reasonable diligence to maintain the Park parking lot in a safe condition. Rather,
it asserts only that it had no notice of any dangerous or defective condition. Upon review of
the record, we note that Ms. Hammer stated in her deposition that she noticed “the little hole”
near the parking spot “probably a month or two prior to” Ms. Dickerson’s fall. Accordingly,
the question of whether the County had constructive notice is a disputed issue of fact to be
determined by the finder of fact in this case.

       We next turn to the County’s assertion that it was not “responsible” for Ms.
Dickerson’s fall. The County’s argument with respect to this issue, as we understand it, is
that the record does not contain sufficient proof to demonstrate that any condition in the
parking lot caused Ms. Dickerson to fall, that it had no notice of any dangerous condition,
and that Ms. Dickerson’s injury was not foreseeable.

       The courts have developed a three-pronged test to establish proximate cause: (1) the
conduct of the defendant must have been a “substantial factor” in causing the injury; and (2)
no rule or policy relieves the wrongdoer from liability; and (3) the harm or injury could have
been reasonably foreseen or anticipated “by a person of ordinary intelligence and prudence.”
Hale v. Ostrow, 166 S.W.3d 713, 719 (Tenn. 2005) (citations omitted). Proximate causation
is generally an issue of fact for the finder of fact. Id. at 718. In the context of proximate
cause, “‘an injury which could not have been foreseen nor reasonably anticipated as a
probable result of an act or omission is not actionable, and such an act is either the remote
cause or no cause of the injury.’” Willis v. Settle, 162 S.W.3d 169, 181 (Tenn. Ct. App.
2004)(quoting Ray Carter, Inc. v. Edwards, 436 S.W.2d 864, 867 (Tenn. 1969)).
“Foreseeability is the test of negligence.” Downs ex rel. Downs v. Bush, 263 S.W.3d 812,
820 (Tenn. 2008)(citations omitted). The requirement of foreseeability

       is not so strict as to require the tortfeasor to foresee the exact manner in which
       the injury takes place, provided it is determined that the tortfeasor could
       foresee, or through the exercise of reasonable diligence should have foreseen,
       the general manner in which the injury or loss occurred. The fact that an
       accident may be freakish does not per se make it unpredictable or unforeseen.
       It is sufficient that harm in the abstract could reasonably be foreseen.

Willis, 162 S.W.3d at 181 (internal citations and quotation marks omitted) (quoting
McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991)).

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       Unlike foreseeability in the context of duty, foreseeability in the context of proximate
cause is a question of fact to be determined by the trier of fact. Id. (citing City of
Elizabethton v. Sluder, 534 S.W.2d 115 (Tenn. 1976)). Additionally, in order to be entitled
to summary judgment, the moving party must either (1) affirmatively negate an essential
element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove
an essential element at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008).
Under Hannan, it is not sufficient that a party moving for summary judgment assert that the
nonmoving party “lacks evidence to prove an essential element of its claim.” Id. at 8. In this
case, whether the hole or dip or depression, as it has been alternately characterized by the
parties, in fact caused Ms. Dickerson to fall; whether the harm and injury to Ms. Dickerson
were reasonably foreseeable; and whether the County’s conduct was a substantial factor in
causing Ms. Dickerson’s injury are properly within the province of the finder of fact.

                                           Holding

      In light of the foregoing, we reverse the award of summary judgment to Rutherford
County. Costs of this appeal are taxed to the Appellee, Rutherford County. This matter is
remanded to the trial court for further proceedings.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




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