                                                                                          06/28/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 May 24, 2018 Session

 LaSONYA ROBERTSON v. CLARKSVILLE-MONTGOMERY COUNTY
                    SCHOOL SYSTEM

               Appeal from the Circuit Court for Montgomery County
                      No. 15-CV-1954 Ross H. Hicks, Judge
                     ___________________________________

                           No. M2017-02492-COA-R3-CV
                       ___________________________________

This is a slip-and-fall case. A middle school teacher injured herself when she fell in the
hallway outside her classroom on a wet floor. A custodian had been mopping the
hallway prior to her fall, and the teacher alleged that the custodians had negligently and
misleadingly placed wet-floor signs on the opposite side of the hallway, which did not
warn her of the wet floor on her side of the hallway. Thereafter, the teacher brought suit
against the school district pursuant to the Tennessee Governmental Tort Liability Act.
Following a bench trial, the trial court found the custodians guilty of negligence and
assigned seventy-five percent of the fault to the school district and twenty-five percent of
the fault to the teacher. A judgment was entered against the school district in the amount
of $180,000.00, after reduction for the teacher’s comparative fault. The school district
appeals, contending (1) that it is immune from suit; (2) that it was not negligent; and (3)
that any negligence it may have committed is outweighed by that of the teacher’s
comparative fault. The teacher argues that the trial court erred in assigning any of the
fault to her. We affirm in part and reverse in part.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which KENNY
ARMSTRONG, JJ., joined. BRANDON O. GIBSON, J., filed a separate dissenting opinion.

Kathryn W. Olita and Jamie K. Durrett, Clarksville, Tennessee, for the appellant,
Clarksville Montgomery County School System.

William L. Aldred, Clarksville, Tennessee, for the appellee, LaSonya Robertson.
                                       OPINION

                      BACKGROUND AND PROCEDURAL HISTORY

       On September 29, 2015, Appellee LaSonya Robertson, an employee of the
Clarksville-Montgomery County School System (“Appellant”) and a teacher at Rossville
Middle School, filed a complaint against Appellant to recover damages for personal
injuries she sustained when she fell in the hallway outside her classroom at the school on
December 12, 2014. Ms. Robertson alleged that Appellant was liable under the
Tennessee Governmental Tort Liability Act (“GTLA”) because the custodians had
negligently mopped the hallway and misleadingly placed two wet-floor signs, and failed
to warn her that the entire hallway was wet. See Tenn. Code Ann. § 29-20-307.

       On November 15, 2015, Appellant answered, denying that the custodians acted
negligently. Furthermore, Appellant averred that it was immune under the GTLA.
Appellant also argued that the water on the floor was “open and obvious” and asserted
comparative fault as a defense.

        The trial court conducted a bench trial on August 29, 2017. Ms. Robertson,
Norman Mitchell, Janet Willis, and Tommy Butler testified. Mr. Mitchell and Ms. Willis
are custodians at the school, and they were present in the hallway when Ms. Robertson
fell. Tommy Butler is the safety and health director for the school system. Ms.
Robertson’s fall was captured on a surveillance video, and the video was made an exhibit
at trial. Several photographs taken by Ms. Willis after Ms. Robertson’s fall were also
introduced into evidence.

        Ms. Willis testified that on the day of the fall she had noticed water “tracked” in
the hallway on the left side near the lockers, so she asked Mr. Mitchell to assist her in
mopping the hallway. Mr. Mitchell testified that on the day of the accident, he had been
assisting Ms. Willis because she was unable to mop due to a recent medical procedure.
Mr. Mitchell and Ms. Willis testified that they had been trained, pursuant to Appellant’s
written policy, to place wet-floor signs out whenever the custodians were mopping or
noticed liquid on the floor. Mr. Mitchell testified that there was liquid on the floor
around an area on the left side of the hallway, so he placed two wet-floor signs out on the
left side of the hallway near the liquid and began mopping. Mr. Mitchell testified that he
mopped the entire hall, including the right side, which abutted Ms. Robertson’s
classroom, after he finished mopping the area between the signs where he had seen the
spill. However, neither Ms. Willis nor Mr. Mitchell moved the wet-floor signs from the
left side of the hallway where the signs were originally placed. Ms. Willis testified that
she knew Ms. Robertson was in her classroom because they had spoken in her classroom
around the time the hallway was being mopped but neither Ms. Willis nor Mr. Mitchell
warned Ms. Robertson that Mr. Mitchell had mopped the entire hallway and not just the
area on the left side of the hallway where Mr. Mitchell had placed the signs.
                                            -2-
       Ms. Robertson testified that on the day of her fall, the students had been released
early, but the teachers were expected to stay for the rest of the regular work day. Ms.
Robertson testified that shortly after 1:00 P.M., she exited her classroom to make copies
for her class and attend a teacher’s meeting scheduled to take place at 1:30 P.M., when
she immediately slipped on the wet floor in the hallway outside her classroom. Ms.
Robertson testified that she was unaware that there was water on the floor until she fell,
and she was unable to see into the hallway from where she had been working at her desk.
Ms. Robertson testified that she was not in a hurry, and she did not see the wet-floor
signs.

       Mr. Butler testified that the custodians attended an annual training session in
which they were provided with a power-point presentation containing Appellant’s wet-
floor sign policy. Mr. Butler testified that custodians are required to put out wet-floor
signs anytime they mop to “make the workplace and school environment as safe as [they]
possibly can for staff, students, and visitors.” Mr. Butler opined that the custodians in
this case took reasonable steps to warn of the liquid on the floor in compliance with the
written policy.

        On November 15, 2017, the trial court issued a Memorandum Opinion setting out
its findings of fact and conclusions of law. The trial court found that the custodians did
not place the wet-floor signs in such a way as to give Ms. Robertson adequate warning
“that mopping had taken place or that the floor was wet in the area where she fell,
particularly since the custodial staff knew that she was still in her classroom and had the
opportunity to warn her orally but failed to do so.” The trial court went on to make the
following findings:

       The placement of the signs in the small area on the left side of the hallway
       near the lockers and the entrance door to the other classroom would have
       been adequate to warn of a wet floor or mopping in that small immediate
       area. The Court finds that it was inadequate to warn Ms. Robertson or
       others that the center and right side of the hallway and the area immediately
       outside Ms. Robertson’s classroom were wet or had been mopped and did
       not conform to the requirements set forth in the school system’s policies.

The trial court concluded that the custodians failed to properly implement the “wet floor
sign policy,” and “the placement of the signs was misleading and did not adequately warn
Ms. Robertson that the right hand side of the hallway where she fell was wet.”
Therefore, the trial court found that Appellant was not immune under the GTLA. The
trial court then held that the custodians were seventy-five percent negligent, but the court
attributed twenty-five percent of the fault for the accident to Ms. Robertson because she
was “negligent in failing to see the sign directly in front of her.” The trial court entered a
final judgment incorporating by reference its Memorandum Opinion and awarding Ms.

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Robertson a judgment for $180,000.00, after reduction for her percentage of comparative
fault. Appellant timely appealed.

                                   ISSUES PRESENTED

      Appellant has raised the following issues for review, which we have rephrased as
follows:

    Whether the trial court committed reversible error in concluding that Appellant’s
     immunity under the Tennessee Governmental Tort Liability Act, Tennessee Code
     Annotated section 29-20-201 had been removed.

    Whether the evidence supports the trial court’s conclusion that the custodians were
     negligent.

    Whether the evidence preponderates against the trial court’s conclusion that the
     custodians’ negligence exceeded the alleged negligence of Ms. Robertson.

       Appellee has raised the following issue for review:

    Whether the trial court erred in failing to allocate one hundred percent of the fault
     for the accident to Appellant.

                                 STANDARD OF REVIEW

       This is a non-jury case and, as such, is subject to our de novo review upon the
record of the proceedings below. We presume that the trial court’s findings of fact are
correct, and we must honor that presumption unless the evidence preponderates to the
contrary. Tenn. R. App. P. 13; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91
(Tenn. 1993). There is no presumption as to the correctness of the trial court’s
conclusions of law. See Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.
1996). As this is a case involving comparative fault, it is important to note that the
assessment of the parties’ relative fault is one of fact, carrying the aforementioned
presumption of correctness. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.
1995). Our de novo review is subject to the well-established principle that the trial court,
having seen and heard the witnesses testify, is in the best position to judge their
credibility. See Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991). Great
deference must be shown to the trial court’s credibility determinations. Id.




                                           -4-
                                       DISCUSSION

                                            I.

       Our initial inquiry requires us to determine whether the allegedly negligent act or
omission is an immune act within the purview of the GTLA. Governmental entities are
immune from suit, except when immunity has been removed by statute. See Tenn. Code
Ann. § 29-20-201. In cases brought pursuant to the GTLA, “[b]efore proceeding in an
action against a governmental entity, the threshold issue of waiver of governmental
immunity must be addressed.” Brown v. Hamilton Cty., 126 S.W.3d 43, 46 (Tenn. Ct.
App. 2003). Relevant to this case, Tennessee Code Annotated section 29-20-205
provides, in relevant portion, as follows:

      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 arises out of:

             (1) The exercise or performance or the failure to exercise or perform
             a discretionary function, whether or not the discretion is abused;

The GTLA does not define the term “discretionary function,” but in Bowers v. City of
Chattanooga, our Supreme Court adopted the planning-operational test to assist courts in
analyzing whether the allegedly negligent act or omission was discretionary. Bowers v.
City of Chattanooga, 826 S.W.2d 427, 430–31 (Tenn. 1992). Under the planning-
operational test, courts must distinguish governmental acts that are performed at the
“planning” level from those performed at the “operational” level:

      [D]ecisions that rise to the level of planning or policy-making are
      considered discretionary acts which do not give rise to tort liability, while
      decisions that are merely operational are not considered discretionary acts
      and, therefore, do not give rise to immunity.

Id. at 430. “Essentially, the discretionary function exception prevents the use of tort
actions to second-guess what are essentially legislative or administrative decisions
involving social, political, economic, scientific, or professional policies or some mixture
of these policies.” Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 85 (Tenn. 2001). Factors
to be considered in determining whether a decision is discretionary include:

      (1) whether the course of conduct was determined after consideration or
      debate by an individual or group charged with formulation of plans or
      policies;

      (2) whether the decision resulted from an assessment of priorities by an
      individual or group responsible for formulating plans or policies; and
                                           -5-
      (3) whether the decision is not of the type properly reviewable by courts
      which are typically ill-equipped to investigate and balance numerous
      factors that go into executive or legislative decision making.

Chase v. City of Memphis, 971 S.W.2d 380, 384 (Tenn. 1998). In Chase v. City of
Memphis, our Supreme Court explained:

      Affirmative answers to the above questions militate toward a finding that a
      decision was a discretionary function. On the other hand, operational
      decisions may be generally classified as ad hoc decisions made by an
      individual or group not charged with the development of planning or policy
      decisions that stem from a determination based on preexisting laws,
      regulations, policies, or standards.

Id. A negligent act or omission is operational in nature and not subject to immunity when
the act or omission occurs: (1) in the absence of a formulated policy guiding the conduct
or omission; or (2) when the conduct deviates from an established plan or policy. Id.

       The trial court concluded that the custodians failed to reasonably comply with
Appellant’s written “mopping” policy by placing the wet-floor signs in a misleading way.
Specifically, the trial court found that the policy was not reasonably and appropriately
implemented such that a reasonable observer would understand that her side of the
hallway was also wet. The trial court stated:

      The placement of the signs in the small area on the left side of the hallway
      near the lockers and the entrance door to the other classroom would have
      been adequate to warn of a wet floor or mopping in that small immediate
      area. The Court finds that it was inadequate to warn Ms. Robertson or
      others that the center and right side of the hallway and the area immediately
      outside Ms. Robertson’s classroom were wet or had been mopped and did
      not conform to the requirements set forth in the school system’s policies.

Therefore, the trial court concluded that immunity was abrogated.

       Appellant avers that the custodians were trained pursuant to Appellant’s written
policy to put out wet-floor signs when mopping, and the custodians reasonably complied
with the policy in this case. In support of its argument, Appellant points out that the
custodians put out two wet-floor signs, and Mr. Butler testified that the custodians
reasonably followed the policy.

        Having carefully reviewed the record, we agree with the trial court that Appellant
is not immune from suit because the decision of where to place the wet-floor signs was
operational in nature. See, e.g., Bowers, 826 S.W.2d at 432 (holding that the decision
                                          -6-
made by a bus driver concerning where on the street to stop the school bus was an
operational decision when the bus driver was directed to stop anywhere near a daycare).
The failure of the custodians to warn Ms. Robertson or place the wet-floor signs in the
area around where Ms. Robertson fell cannot be characterized as a planning decision
reflecting a course of conduct by those in charge of formulating the policy. Therefore,
we hold that the discretionary/planning function exception to the removal of immunity
does not apply to shield the actions of the custodians in this case.

                                                  II.

        Next, we must consider whether the record supports the trial court’s conclusion
that the custodians acted negligently in causing Ms. Robertson’s fall. Appellant claims
that the custodians acted reasonably under the circumstances, and their actions did not
constitute negligence. Furthermore, Appellant avers that the trial court erred by
concluding that Ms. Robertson’s negligence was less than the custodians’ negligence.
See, e.g., McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992) (“[S]o long as a
plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may
recover; in such a case, plaintiff’s damages are to be reduced in proportion to the
percentage of the total negligence attributable to the plaintiff.”).

       Negligence cannot be presumed by the mere happening of an accident. Brackman
v. Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App. 1971). “‘[P]eople fall all the time[,] but
this does not perforce mean that the fall was due to another’s negligence[.]’” Mooney v.
Genuine Parts Co., No. W2015-02080-COA-R3-CV, 2016 WL 2859149, at *3 (Tenn. Ct.
App. Apr. 20, 2016) (citation omitted). “In a premises liability action against a
governmental entity, the plaintiff must prove that: (1) the governmental entity owns and
controls the location or instrumentality alleged to have caused the injury; (2) a dangerous,
defective, or, in the case of sidewalks, unsafe condition caused the injury; (3) the
governmental entity had actual or constructive notice of the dangerous condition; and (4)
the governmental entity breached either its duty to eliminate the condition or its duty to
warn of the condition.” Traylor ex rel. Traylor v. Shelby Cty. Bd. of Educ., No. W2013-
00836-COA-R3-CV, 2014 WL 792131, at *8 (Tenn. Ct. App. Feb. 27, 2014) (citations
omitted). We have described the duty of care owed to an employee by her employer as
follows:

       The master owes the duty of ordinary care to prevent injury to the servant
       in the work place, and he is bound to use such care to furnish the servant a
       reasonably safe place and safe appliances for the work. This duty of the
       master is personal, continuous, and non-delegable.

Overstreet v. Norman, 314 S.W.2d 47, 50 (Tenn. Ct. App. 1958) (citations omitted).1

       1
           As was the case in Overstreet v. Norman, the instant action does not fall under the worker’s
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        The first three elements are not in dispute in this case. However, Appellant claims
that the custodians’ conduct with respect to the placement of the wet-floor signs was
reasonable under the circumstances and, hence, did not constitute negligence. The
evidence simply does not support Appellant’s contention. On the surveillance video, Mr.
Mitchell can be seen placing two wet-floor signs around a relatively small area on the far
left side of the hallway right in front of a row of lockers. He begins by mopping the area
in between the signs, but then he mops the entire length of the hallway along the right and
left sides. However, Mr. Mitchell did not move the wet-floor signs to indicate that a much
larger area had been mopped. Furthermore, Ms. Willis was watching Mr. Mitchell while
he mopped the hall, but she was not assisting him because of a recent surgery. Ms. Willis
testified that she knew Ms. Robertson was in her classroom because she spoke with Ms.
Robertson in her classroom around the time that the hallway was being mopped. Mr.
Mitchell also testified that he knew people were still in the building. However, neither
Ms. Willis nor Mr. Mitchell warned Ms. Robertson that the right hallway directly outside
her classroom was wet from being mopped.

       Moreover, Ms. Robertson testified that she did not see the wet-floor signs before
she fell, and she fell almost immediately after she stepped into the hall. The following
exchange occurred when Ms. Robertson was being cross-examined:

       Q: [S]o what prevented you from seeing those wet floor signs on that day?

       A: I can’t say what prevented me from seeing them. I just don’t remember
       seeing any signs. Like I said, when I came out of my classroom, as soon as
       I turned the corner, I was falling to the floor. If I had seen that first sign in
       front of Ms. Averritt’s door [i.e. the door across the hall], it would have
       indicated to me that that area in front of her door was wet—had a spill or
       something was wet there.

       Q: Okay.

       A: It wouldn’t have indicated to me that where I was walking was wet.

       Q: And so after you proceeded into the hall then and if you had seen the
       second sign, would that have indicted to you then that that area of the floor
       was wet.

       A: The area on that side of the hallway. It would have indicated to me that
       that must be wet on that side of the hallway.


compensation statutory scheme but rather is controlled by general principles of negligence and the GTLA.
See Overstreet, 314 S.W.2d at 49.
                                                 -8-
       The trial court found that Ms. Robertson was a credible witness, and she “was not
distracted, was walking normally and was otherwise using reasonable care for her own
safety and making responsible use of her senses” when she entered the hallway. Our
review of the video that was an exhibit at trial and included in the record on appeal also
demonstrates that Ms. Robertson fell less than two seconds after exiting her classroom.
The evidence clearly supports the trial court’s conclusion that the custodians were
negligent in their placement of the wet-floor signs and in mopping the entire hall without
warning Ms. Robertson or moving the signs. For the foregoing reasons, we have
concluded that the evidence in the record supports the trial court’s conclusion that the
custodians were negligent.

        Next, Appellant argues that even if the custodians were negligent, Ms. Robertson’s
negligence was equal to or exceeded the custodians’ negligence. Therefore, Appellant
avers, Ms. Robertson’s recovery is barred under the doctrine of comparative fault. See
McIntyre, 833 S.W.2d at 53. Conversely, Ms. Robertson avers that the trial court erred in
attributing any of the fault to her, and she should be awarded additional damages.

      In attributing seventy-five percent of the fault and twenty-five percent of the fault
to Appellant and Ms. Robertson respectively, the trial court explained its reasoning as
follows:

       The Court further finds that the school system breached its duty to warn of
       the dangerous condition which it created because the wet floor signs were
       placed in a manner which did not adequately warn Ms. Robertson of the
       danger she confronted. The Court also finds that the Plaintiff was also
       partially at fault in that she failed to notice a sign that was directly across
       from her classroom entrance on the opposite of the hallway. Although, as
       previously stated, the placement of the sign was such that it would lead
       any reasonable observer to think that it was warning of a wet floor
       area across the hallway from where Ms. Robertson was walking, her
       testimony was that she did not see the sign at all. The Plaintiff had a
       duty to use reasonable care for her own safety and the Court finds that
       she was negligent in failing to see the sign directly in front of her.

(emphasis added).

       We respectfully disagree with the trial court’s decision to attribute twenty-five
percent of the fault to Ms. Robertson. “The comparative fault analysis must take into
consideration the total context of the injury-causing incident[.]” Keaton v. Hancock Cty.
Bd. of Educ., 119 S.W.3d 218, 225 (Tenn. Ct. App. 2003). “One of the factors courts
must consider in assessing comparative negligence is ‘the reasonableness of the party’s
conduct in confronting a risk.’” Cannon v. Loudon Cty., 199 S.W.3d 239, 244 (Tenn. Ct.
App. 2005). “In making this determination, our courts have properly taken into
                                            -9-
consideration whether, and to what extent, encountering a known risk is avoidable; or,
stated another way, what reasonable alternatives to encountering a known risk are
available to a party.” Id. In attributing the percentage of fault assigned to each party, a
trial court may also consider the extent to which the defendant failed to reasonably utilize
an existing opportunity to avoid harm to the plaintiff. Eaton v. McClain, 891 S.W.2d
587, 592 (Tenn. 1994).

        In this case, the trial court found that the placement of the wet-floor signs was
misleading because “the placement of the sign[s] was such that it would lead any
reasonable observer to think that it was warning of a wet-floor area across the hallway
from where Ms. Robertson was walking.” Even though the trial court concluded that the
positioning of the signs would have misled any “reasonable observer,” the court
attributed twenty-five percent of the fault to Ms. Robertson for failing to see the sign. It
seems inconsistent to fault Ms. Robertson for failing to notice the sign on the opposite
side of the hallway in light of the trial court’s finding that the sign would not have served
as an adequate warning even if she had seen it. Moreover, we point out again that Ms.
Robertson fell almost instantaneously upon exiting her classroom, and the trial court
found explicitly that Ms. Robertson “was not distracted, was walking normally and was
otherwise using reasonable care for her own safety and making responsible use of her
senses” when she entered the hallway. There is no proof in the record to support a finding
by the trial court that Ms. Robertson in any way caused or contributed to her injuries.

        This Court confronted similar facts in Cannon v. Loudon County, 199 S.W.3d 239,
240 (Tenn. Ct. App. 2005). In Cannon v. Loudon County, the roof of a jail leaked and
puddles of water accumulated on the floor. Id. The plaintiff got out of bed to use the
restroom in the night, and he slipped while attempting to traverse the wet floor, which
constituted the only path leading to the restroom. Id. at 243–44. The trial court found
that each party was fifty percent at fault for the plaintiff’s injuries and dismissed the case.
Id. at 240. However, on appeal, this Court attributed one hundred percent of the fault to
the jail personnel for failing to maintain the premises in a reasonably safe manner. Id. at
245. This Court considered factors such as the inmate’s inability to avoid the water and
the reasonable need to use the restroom in the night when allocating one hundred percent
of the fault to the jail. Id. at 245.

        Similarly, in the case before us, Ms. Robertson acted reasonably in walking out of
her classroom to attend an afternoon meeting with the other teachers. For the foregoing
reasons, we hold that the evidence preponderates in favor of the conclusion that the
plaintiff should not be held at fault. “While the trier of fact has considerable latitude in
allocating percentages of fault, appellate courts have the power to reallocate fault when
the evidence preponderates against the trial court’s fault-finding.” Id. (citations omitted).
Accordingly, we reverse the trial court’s finding that Ms. Robertson was twenty-five
percent at fault for her injuries and hold that Appellant was one hundred percent at fault.

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                                      CONCLUSION

       For the foregoing reasons, we affirm the trial court’s conclusion that Appellant is
not entitled to immunity under the GTLA and that the custodians were negligent.
However, we reverse the trial court’s decision to allocate twenty-five percent of the fault
to Ms. Robertson and remand the case for the trial court to enter a judgment for the total
amount of damages to which the trial court found the Appellant to be entitled and for
such further proceedings as are necessary and consistent with this Opinion.



                                                   _________________________________
                                                   ARNOLD B. GOLDIN, JUDGE




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