                   IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT NASHVILLE


WILLIE J. COLLINS,                   )
                                     )
             Plaintiff/Appellant,    ) Davidson Circuit No. 94C-981
                                     )
VS.                                  ) Appeal No. 01A01-9607-CV-00339
                                     )
METROPOLITAN GOVERNMENT              )
OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE, and
                                     )
                                     )
                                                                  FILED
HANK HILLIN, SHERIFF,                )
                                     )                                April 18, 1997
             Defendants/Appellees.   )
                                                                    Cecil W. Crowson
                                                                 Appellate Court Clerk
           APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                        AT NASHVILLE, TENNESSEE
                 THE HONORABLE WALTER C. KURTZ, JUDGE




MARK NORTH
Madison, Tennessee
Attorney for Appellant


JAMES L. MURPHY, III
Director of Law
WM. MICHAEL SAFLEY
Metropolitan Attorney
Department of Law of the
Metropolitan Government of
Nashville and Davidson County
Nashville, Tennessee
Attorneys for Appellees




AFFIRMED


                                                       ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
        Plaintiff Willie J. Collins appeals the trial court’s final order dismissing his negligence

claims against Defendant/Appellee Metropolitan Government of Nashville and Davidson

County (hereinafter “Metro”). After conducting a bench trial, the trial court dismissed

Collins’ claims against Metro based on the court’s ruling that Collins had failed to meet his

burden of proving that Metro either created, knew of, or should have known of a dangerous

or defective condition on its premises, as required by the Tennessee Governmental Tort

Liability Act.1 We affirm.



        Collins filed this lawsuit for injuries that he allegedly suffered when a television at

the Criminal Justice Center in Nashville fell off of its mountings and struck Collins on the

head. At the time of his injuries, Collins was an inmate at the Criminal Justice Center jail.

The television was mounted on a suspended bracket approximately twelve feet from the

floor. As the basis for his negligence claims against Metro,2 Collins alleged that the

manner in which the television was mounted constituted a dangerous condition, that Metro

employees were responsible for creating the dangerous condition, and, further, that Metro

employees either were aware of, or should have been aware of, the dangerous condition.



         In his deposition introduced at trial, Collins testified that he and about five other

inmates were playing cards at a recreation table when he heard a “big boom” and “felt pain

in the top of [his] head.” Collins later found out that a television had fallen from the ceiling,

hitting him on the head and knocking him to the floor. Collins remembered that the

television hung on brackets. Part of the mounting structure was held together by screws,

but, according to Collins, the screws had been replaced by toothbrushes. Ronnie Simms,

a fellow inmate, generally corroborated Collins’ testimony. Simms testified that the

structure holding up the television “had toothbrushes in it” instead of bolts or screws.

According to Simms, the television was being held up by “wire, toothbrushes, strings and

everything.”




        1
            T.C.A. §§ 29 -20-101 to 29-20 -407 (1980 & Supp . 1996).

        2
           Collins initially filed this complaint against Metro and against Sheriff Hank Hillin. By an agreed order,
the trial court d ism issed Collins’ claim s ag ainst the sheriff.

                                                         2
       In Metro’s defense, Timothy Hindsley, a correctional officer at the Criminal Justice

Center, testified that he and other correctional officers checked the cells at least every

twenty minutes while making their rounds. The officers performed a more thorough check

on at least a weekly basis. This inspection included the television because “[t]he television

and other areas in the day rooms are common places where [the inmates] would hide

contraband or drugs, [or] weapons of some sort.” In inspecting the television, the officers

generally “would get on top of the table, move the television around, look under the

television with flashlights, [and] just do a thorough inspection of and around the television.”

Officer Hindsley was not aware of any previous problems with this particular television, and

he did not know of any television within the Criminal Justice Center ever to have fallen.

Hindsley also was not aware if any routine maintenance was performed on the mountings

or the television, and he admitted that, in inspecting the television, he never checked the

bolts. Nevertheless, Hindsley directly contradicted the inmates’ testimony that toothbrushes

were used to hold up the television.



       Officer Hindsley was standing out in the hallway in front of the cellblock when he

heard a loud bang from inside. When he entered the cellblock, Hindsley observed the

television lying on the table. Hindsley testified that, contrary to Collins’ deposition

testimony, Collins was conscious and was standing beside the table. Collins informed the

officer that the television had fallen from the ceiling and hit him in the head. As Hindsley

was talking to Collins, the other inmates in the cellblock began yelling, “Lawsuit, lawsuit.”

Collins then “went to his knees,” and the officer summoned medical assistance.



       After the accident, the facility’s maintenance officer, Rolus Smith, replaced the

television which had fallen from the mountings. He noticed that the mounting structure

itself “was intact” and “in good shape.” Smith did not have to replace the bolts on the

mountings, and he saw no evidence of any toothbrushes in the area of the bolts or around

the television. Smith testified that, contrary to Metro’s prior answer to interrogatories,

routine maintenance was performed on the televisions and mountings, and they were

“checked periodically.” Smith stated that no other televisions had fallen at the Criminal



                                              3
Justice Center. James McIllwain, facility manager, also examined the mounting structure

after the television fell, and he testified that “[t]here was nothing wrong with it.” No bolts

or screws had to be replaced, and McIllwain never observed any toothbrushes being used

to secure the mountings on this television or any other television. Like the other Metro

employees, McIllwain had no knowledge of any other televisions within the Criminal Justice

Center falling from their mountings.



       At the conclusion of all the evidence, the trial court rejected Collins’ claims, finding

first, as a matter of fact, “that toothbrushes were not holding up . . . the television set.” As

for Metro’s creation or knowledge of a dangerous condition on its premises, citing

Tennessee Code Annotated section 29-20-204(b),3 the trial court further ruled that:

                  To be entitled to a verdict based upon a defective or
                  unreasonably dangerous condition of the premises, plaintiff
                  must show that the defendant either created the condition or
                  knew of the condition prior to plaintiff’s injury long enough for
                  defendant to have corrected the condition or given warning of
                  it, or that the condition had existed for a sufficient length of
                  time, that the defendant, in the [exercise] of reasonable care,
                  should have known of its existence and corrected or warned of
                  it.

                          I think here that the plaintiff’s proof fails measured
                  against that standard. There’s not proof that the defendant
                  created this condition or knew of the condition long enough to
                  have corrected it or that the condition had existed for a
                  sufficient length of time that the defendant, in [exercise] of
                  reasonable care, should have known of its existence and
                  corrected or warned of it.

The trial court entered a judgment in favor of Metro, and this appeal followed.



       Inasmuch as this case was tried by the court below sitting without a jury, this court’s

review on appeal is governed by Tennessee Rule of Appellate Procedure 13(d), which

directs us to review the case de novo. Roberts v. Robertson County Bd. of Educ., 692

S.W.2d 863, 865 (Tenn. App. 1985); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297,

300 (Tenn. App. 1984); T.R.A.P. 13(d). In conducting a de novo review of the record

below, however, this court must presume that the trial court’s findings of fact are correct.

Under this standard of review, we must affirm the trial court’s decision unless the trial court


       3
           T.C.A. § 29-2 0-204(b) (1980 ).

                                                 4
committed an error of law affecting the result or unless the evidence preponderates against

the trial court’s findings. Roberts, 692 S.W.2d at 865.



       Applying the foregoing standard, we affirm the trial court’s judgment entered in favor

of Metro in this case.     The Tennessee Governmental Tort Liability Act removes a

governmental entity’s immunity from suit “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.” T.C.A. § 29-20-204(a)

(1980). The statute does not remove immunity, however, unless the plaintiff alleges, and

ultimately proves, that the governmental entity had “constructive and/or actual notice” of

the dangerous or defective condition. T.C.A. § 29-20-204(b) (1980); see Lee v. City of

Cleveland, 859 S.W.2d 347, 349 (Tenn. App. 1993); Smith v. City of Covington, 734

S.W.2d 327, 329 (Tenn. App. 1985), aff’d, 1987 WL 12494 (Tenn. June 22, 1987). This

statutory requirement appears to be in accordance with common-law principles governing

premises liability cases. See, e.g., Underwood v. HCA Health Servs., 892 S.W.2d 423,

427 (Tenn. App. 1994) (stating that, in order to establish prima facie case of premises

liability, plaintiff must show that defendant had actual or constructive notice of dangerous

or defective condition).



       In the present case, Collins sought to prove that Metro had constructive and/or

actual notice of a dangerous condition on its premises by showing (1) that Metro mounted

the television in such a manner that the structure constituted a dangerous condition;

(2) that Metro employees failed to periodically inspect the mounting structure for loose

screws or bolts; and (3) that inmates observed the structure being held together with

toothbrushes instead of bolts. Regarding Collins’ last theory, the trial court specifically

found, as a matter of fact, that toothbrushes were not holding up the television set, and we

conclude that the evidence does not preponderate against such a finding. Although the

inmates testified that bolts in the mounting structure had been replaced by toothbrushes,

Metro’s correctional and maintenance officers directly refuted this testimony. When a

conflict in testimony requires the trial court to make a determination regarding the credibility



                                               5
of a witness or witnesses, such a determination is “binding on the appellate court unless

from other real evidence the appellate court is compelled to conclude to the contrary.”

Hudson v. Capps, 651 S.W.2d 243, 246 (Tenn. App. 1983).



       As for Collins’ other theories, we also affirm the trial court’s ruling that Collins failed

to prove either that Metro created a dangerous condition on its premises or that Metro

knew or should have known of such a dangerous condition.                   Contrary to Collins’

contention, the record contains no compelling evidence that Metro created a dangerous

condition by mounting the television in an unsafe manner. At trial, Collins sought to show

that Metro had mounted the television so that it hung from the ceiling at a precarious angle.

Metro employees acknowledged that the mounting structure was designed so that the

television would hang from the ceiling at an angle; however, they also testified that the

mounting structure and the television were held securely together by a system of bolts,

screws, brackets, and plates, and that the television would not necessarily fall from the

structure even if one or more bolts came loose. Cf. McGaughy v. City of Memphis, 823

S.W.2d 209, 215 (Tenn. App. 1991) (holding that public utility had constructive and/or

actual notice of dangerous condition where utility installed and maintained uninsulated high

power lines over private property in close proximity to lumber storage and other activities).



       Moreover, the record fails to compel the conclusion that Metro either knew or should

have known that the television’s mounting structure presented a dangerous condition.

Inspections conducted by Metro employees at the facility after the accident revealed that

nothing was wrong with the mounting structure and that no bolts or screws were missing

from the structure. Facility employees further testified that, prior to the accident, televisions




                                               6
and mountings at the Criminal Justice Center were checked periodically, 4 and that no other

televisions at the facility had fallen from their mountings.



         As this court previously stated,

                  The legislature specifically made the removal of immunity
                  under [section 29-20-204] conditional upon allegation and
                  proof that the entity knew or should have known of the
                  condition of its instrumentality causing the damages
                  complained of. Thus, if the plaintiff is unable to prove that the
                  entity had actual or constructive notice of the defective
                  condition the entity is immune from suit.

Smith v. City of Covington, 734 S.W.2d 327, 329 (Tenn. App. 1985), aff’d, 1987 WL 12494

(Tenn. June 22, 1987); accord Lee v. City of Cleveland, 859 S.W.2d 347, 349 (Tenn. App.

1993). In accordance with the foregoing principles, we conclude that the trial court properly

dismissed Collins’ negligence claims against Metro.5



         The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Collins, for which execution may issue if necessary.


                                                                          HIGHERS, J.
CONCUR:


CRAWFORD, P.J., W.S.


FARMER, J.




         4
            In any event, to the extent that Collins’ lawsuit against Metro rests on C ollins’ allegations that Metro
employees negligently failed to inspect the television and the mounting structure, such suit is barred by
Tennessee Code Annotated section 29-20-205(4), which provides that governmental imm unity is not removed
if an inju ry arises out of an e m ployee ’s “failure to mak e an inspe ction, o r by reason of m aking an inade qua te
or negligent inspection of any property.” T.C.A. § 29-20 -205 (4) (1980 ); see Johnson v. EMPE, Inc., 837
S.W .2d 62, 64 (Tenn. App. 1992) (holding that allegations charging city with failure to inspect pre m ises fell
directly within exception of section 29-20-205(4) and any action bas ed thereo n wa s ba rred); Mow dy v. Ke lly,
667 S.W .2d 489, 492 (Tenn. App. 1983) (holding that county was imm une from liability when proximate cause
of plaintiff’s inju ry was em ployee ’s failure to insp ect prope rty); cf. Morrow v. Tow n of M adisonville, 737 S.W .2d
547, 548-49 (Tenn. App. 1987) (holding that town was not imm une under section 29-20-205(4) where alleged
negligence was not em ployee ’s failure to insp ect w ater m eter c over but, rather, emp loyee’s improper
replacem ent of water m eter cover after reading m eter).

         5
          W e also agree with the trial court’s ruling that the doctrine of res ipsa loquitur did not apply in this
case. See Underwood v. HCA Health Servs., 892 S.W .2d 423, 427 (Tenn. App. 1994) (holding that doctrine
of res ipsa loquitur did not apply in action against hospital for injury sustained by plaintiff when ice dispenser
cover fell on her where plaintiff presented no evidence that ice dispenser itself was not operating properly or
that cover was de fective or improperly attached).

                                                           7
