           IN THE COURT OF APPEALS
                 AT KNOXVILLE                        FILED
                                                     August 25, 1999

                                                    Cecil Crowson, Jr.
                                                     Appellate Court
                                                           Clerk


GREGORY HINTON,        ) HAMILTON COUNTY
                                ) 03A01-9901-CV-00013
     Plaintiff-Appellee,        )
                                )
                                )
     v.                         ) HON. L. MARIE WILLIAMS
                                ) JUDGE
                                )
CITY OF CHATTANOOGA,            )
                                )
     Defendant-Appellant.       ) AFFIRMED AND REMANDED




KENNETH O. FRITZ and MICHAEL A. MCMAHAN OF CHATTANOOGA FOR
APPELLANT

MICHAEL A. WAGNER OF CHATTANOOGA FOR APPELLEE




                            O P I N I O N




                                                 Goddard, P.J.


          This appeal from the Circuit Court of Hamilton County

concerns liability under the Tennessee Governmental Tort

Liability Act.    The City of Chattanooga, Tennessee, the

Defendant/Appellant, appeals an award of $45,000 to Gregory

Hinton, Plaintiff/Appellee, for an injury he received while

playing basketball on a court owned and maintained by the City of

Chattanooga.
           The City presents four issues, which we restate, as

follows:



                 1. Whether Mr. Hinton’s assumption of
                 risk precludes any recovery in this
                 matter.

                 2. Whether the City was negligent in
                 maintaining the condition of the gymnasium
                 floor throughout the play of the
                 basketball league on Sunday, January 19,
                 1997.1

                 3. Whether the City had notice that the floor
                 was in a dangerous condition based upon the
                 City’s practice of maintaining the floor by
                 dust mopping the floor before and during
                 games.

                 4. Whether the trial court erred in finding
                 that Mr. Hinton was 40% at fault and the
                 City was 60% at fault for Mr. Hinton’s
                 injuries.


We affirm the judgment of the Trial Court.




           On Sunday afternoon, January 19, 1997, Mr. Hinton

arrived at the Tyner Recreation Center, which is owned and

operated by the City of Chattanooga Department of Parks and

Recreation, at approximately 3:45 to participate in a league

basketball game, which was administered by the City.            Mr.

Hinton’s game was scheduled to begin at 4:00 p.m., but did not

begin until approximately 5:00 p.m.



     1
       The City’s brief refers to the date of Mr. Hinton’s injury as January
26, 1999, and Mr. Hinton’s brief refers to the date of his injury as January
26, 1997. The record refers to the date of Mr. Hinton’s injury as January 19,
1997, which is the date used by this Court.

                                     2
          Mr. Hinton, an employee of Huntco Steel, played on that

company’s basketball team.   He had not participated in a

basketball league before, although he is an experienced amateur

player.   Mr. Hinton stated that he walked onto the court to begin

warming up for his game once the game preceding his had ended.

Mr. Hinton testified that he had been on the court for

approximately sixty seconds when he felt his knee pop as he was

shooting a right-handed lay-up.       He then fell to the floor.




          Mr. Hinton was helped off the floor by teammates and

went outside the facility for air after the game had begun.

Although Mr. Hinton attempted to re-enter the game after he had

fallen, he felt that he could not continue.        He testified that

he did not see that the floor was dusty before he began playing

on it, but noticed the dust on the floor when he sat down on the

bench on the sideline after he had fallen.




          Mr. Hinton further testified that he told Jerry

Marshall, a coordinator of sports programs for the City, that the

floor was dusty and that it had caused him to slip.       Mr.

Marshall, according to Mr. Hinton, stated that “he knew.”       Mr.

Marshall gave Mr. Hinton a telephone number and told him that the

City would pay for his injuries and that he should call either



                                  3
Clarence Williams, a recreation supervisor for the City of

Chattanooga Parks and Recreation, or him at that number.




            Several of Mr. Hinton’s teammates testified regarding

what occurred that day.   Clive Jackson, a co-worker with Mr.

Hinton and coach of the league team, testified that the league

was running behind that day.    He further testified that while he

was there at the facility, he did not see anyone dust mop the

floor.    He also testified that he saw Mr. Hinton’s foot slide out

from under him and saw him fall.




            Fabian Timmons, another teammate of Mr. Hinton’s, also

testified that the league was running behind and that he saw no

one dust mop the floor between the end of the game preceding his

game and the start of his team’s warm-ups.    Mr. Timmons did state

that he saw someone dust mop the floor at the end of his team’s

game.    He also stated that he saw Mr. Hinton’s foot slide out

from under him as he went up for a lay-up.    He stated that he

told the referees that floor was slick, but they laughed at his

comments.




              Demetrius Tate and Charlie M. Smith, Jr., also

teammates of Mr. Hinton’s, stated that they too saw Mr. Hinton’s



                                 4
foot slide out from under him before he fell to the floor.     Mr.

Tate also stated that he did not see anyone dust mop the floor.




          The City acknowledged that it has a procedure for

maintaining the floor during the play of basketball games by dust

mopping the floor before the start of each game, at halftime of

the game, or as needed.   The City argues that none of the players

on Mr. Hinton’s team complained that the floor was dusty or

dangerous before playing or during their play on the floor,

although at least one of the players maintains he informed the

referees about the floor’s condition.    The City maintains that

the floor was dust mopped by City employees who were present

during the play of the league basketball games.




          Furthermore, the City contends that it provided floor

mats for individuals to wipe their shoes on as they entered the

building, as well as wet towels for players to wipe their shoes

on as they began play.    Mr. Hinton denies that the City provided

these things for the players.




          Clarence Williams, the recreation supervisor, testified

that the normal practice for the City is to dust mop the floor

between games because dust can accumulate on the floor.   He

acknowledged that the City had received complaints that the floor

                                 5
was slippery before Mr. Hinton fell on January 19, 1997.     He

further acknowledged that the City was aware that the cleaning

service hired by the City was not doing a good job of cleaning

the floor before Mr. Hinton’s injury.




           Mr. Marshall testified that Jeff Strong, a City

employee who completed an incident report concerning Mr. Hinton’s

injury, told him that the City was having complaints about the

floor before Mr. Hinton’s injury.   Mr. Marshall also admitted

that he gave Mr. Hinton the paper with the phone number to call

Mr. Williams or him.




           Dr. Kurt Chambless treated Mr. Hinton and found that

he had suffered a rupture of the quadriceps tendon.    Dr.

Chambless performed surgery to repair the injury.




           The Trial Court found that both parties were at fault.

It stated that both parties should have foreseen that an injury

could occur if dust were on the basketball court.   It noted that

the condition of the court was one “which the plaintiff with his

experience in basketball reasonably should have been able to

detect.”   As for the City, the Trial Court found that it had a

duty “to provide a safe place for the activity being conducted

and the violation of that duty results in negligence.”   The Trial

                                6
Court found Mr. Hinton to be 40% at fault and the City to be 60%

at fault.    The Trial Court awarded Mr. Hinton $45,000 in damages.




             The City’s first issue on appeal concerns whether Mr.

Hinton assumed the risk of injury by playing in the basketball

league and thus, is precluded from any recovery in this case.

The City argues that after Mr. Hinton was injured, “the game

continued without a need to dustmop [sic] the floors based on the

concerns of other players, employees of the City who administered

the league, or the referees.”    The City contends that it provided

mats and wet towels for players to wipe their feet on and that

the City attempted to dust mop the floors at regular intervals or

as required.




             Mr. Hinton argues that express assumption of the risk

is not applicable to this case and that implied assumption of the

risk no longer exists in Tennessee, citing Perez v. McConkey, 872

S.W.2d 897 (Tenn. 1994).    In Perez, the Tennessee Supreme Court

stated that “the reasonableness of a party’s conduct in

confronting a risk should be determined under the principles of

comparative fault.”    Perez,872 S.W.2d at 905.   Mr. Hinton asserts

that the Trial Court analyzed the facts of this case using that

principle.




                                  7
          We find that the Trial Court evaluated Mr. Hinton’s

conduct under the principles of comparative fault, and the record

supports the Trial Court’s assignment of fault.   Therefore, this

issue is without merit.




          In its second issue, the City argues that it adequately

maintained the floor on which the basketball game was played.

The City contends that it attempted to make the floor as clean as

possible and to maintain it in a safe condition for play.     The

City further asserts that Mr. Hinton and his teammates

acknowledged that the condition of the floor was safe by playing

on the floor.




          Mr. Hinton argues that the Trial Court found that the

City breached its duty to him by not properly maintaining the

gymnasium floor.   He further asserts that the failure by the City

to maintain the floor was an operational omission, not a

discretionary one, and thus, the City is not immune from

liability under the Tennessee Governmental Tort Liability Act.




          The Tennessee Governmental Tort Liability Act grants

immunity, subject to certain statutory exceptions, to

governmental entities such as the City of Chattanooga.     See Tenn.

Code Ann. § 29-20-201.

                                8
          Governmental entities are immune from liability for

discretionary acts under Tennessee Code Annotated § 29-10-205,

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

that case, 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
     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

                                9
     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.




          The record indicates that the gymnasium floor was dusty

and slick.   The City’s failure to maintain the floor by following

its customary procedure for dust mopping the floor is clearly

operational, not discretionary, in nature.   Therefore, the City’s

immunity from liability is removed.




          The City’s third issue is that Mr. Hinton did not offer

any evidence that the City had actual or constructive notice of a

dangerous condition.   The City argues that Mr. Hinton did not

allege in his pleadings that the basketball court was in a

dangerous condition.




          Mr. Hinton asserts that the evidence overwhelmingly

indicates that the City had notice of the dangerous condition of

the floor.   With respect to the pleadings, Mr. Hinton argues that

he did allege that the floor was “not safe for play and was in an

unsafe condition” (emphasis added).   Mr. Hinton contends that “if

the floor is not safe for play, it must be dangerous.”

Furthermore, Mr. Hinton maintains that the City, through its

                                1 0
agents and employees, had actual knowledge of the floor’s dusty

condition.   Mr. Williams testified that the City had received

complaints about the condition of the floor and that he and

others in City management had been displeased with the quality of

the work performed by the cleaning service hired to maintain the

floor.




          The record contains ample evidence that the City was

well aware of the condition of the floor, and City employees had

complained themselves about the quality of the work performed by

the cleaning service.   Therefore, this issue is without merit.




          Finally, the City argues that this Court has the

authority to reallocate the percentage of liability, citing

Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn. 1995).     The

City argues that in light of the evidence, this Court should find

that Mr. Hinton was no less than 50% at fault.    Mr. Hinton,

however, asserts that the evidence supports the Trial Court’s

findings, and thus, the Trial Court’s judgment should not be

disturbed on appeal.    Citing Wright, Mr. Hinton maintains that

the “trier of fact has considerable latitude in allocating

percentages of fault” to the parties.




                                 1 1
           In Wright, the Tennessee Supreme Court stated the

following regarding the standard of review:



               Although it is true that the trier of fact
          has considerable latitude in allocating
          percentages of fault to negligent parties, see
          e.g., Martin v. Bussart, 292 Minn. 29, 193 N.W.2d
          134 (1971), appellate courts may alter those find-
          ings if they are clearly erroneous. Because this
          case was tried without a jury, our review of the
          issues of fact is de novo on the record of the
          trial court. However, we must presume that the
          trial court’s findings were correct unless the
          preponderance of the evidence is otherwise. Tenn.
          Code Ann. § 27-3-103; Tenn.R.App.P. 13(d).



Wright, 898 S.W.2d at 181.




          The Minnesota court in Martin stated its standard of

review to be the following:



               Upon a review of a jury’s apportionment of
          negligence between tortfeasors we are governed by
          those same standards--that is, we will not
          substitute our judgment for that of the jury
          unless there is no evidence reasonably tending to
          sustain the apportionment or the apportionment is
          manifestly and palpably against the weight of the
          evidence.



Martin v. Bussart, 193 N.W.2d 134, 139 (Minn. 1971).   We note

that the Martin was a jury case, whereas Wright was a nonjury

case.




                               1 2
              Following the decision in Wright, two different

standards of review for comparative fault cases appear to have

developed: a “clearly erroneous” standard and a preponderance of

the evidence standard.    The Western Section of this Court appears

to have adopted the clearly erroneous standard.    See Griggs v.

Mixon, filed in Jackson on August 6, 1996; Nichols v.

Metropolitan Government of Nashville and Davidson County, filed

in Nashville on July 12, 1996.    This section of this Court

appears to have adopted the preponderance of the evidence

standard.    See Varner v. Perryman, 969 S.W.2d 410 (Tenn. Ct. App.

1997); Richardson v. City of Knoxville, filed in Knoxville on

October 3, 1996.




            We believe that the proper rule for nonjury cases is

provided by 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.      Rule

13(d) of the Tennessee Rules of Appellate Procedure also provides

that for cases decided by a jury, findings of fact may be set

aside only if there is no material evidence to support the

verdict.




                                 1 3
          However in this case, using either the preponderance of

the evidence standard or the clearly erroneous standard, we are

of the opinion that the Trial Court should be affirmed.




          For the foregoing reasons, the judgment of the Trial

Court is affirmed and the cause remanded for collection of the

judgment and costs below.   Cost of appeal are adjudged against

the City of Chattanooga and its surety.



                               _______________________________
                               Houston M. Goddard, P.J.


CONCUR:



________________________________
Herschel P. Franks, J.



________________________________
Charles D. Susano, Jr., J.




                                1 4
