                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                             July 2, 2003 Session

     LINDSAY E. ALFORD, ET AL. v. THE OAK RIDGE CITY SCHOOLS

                          Appeal from the Circuit Court for Anderson County
                            No. AOLA-0554       James B. Scott, Jr., Judge

                                           FILED AUGUST 28, 2003

                                        No. E2002-03133-COA-R3-CV


Lindsay E. Alford (“the plaintiff”) and her father, David R. Alford, IV1, sued The Oak Ridge City
Schools (“the high school”) under the Governmental Tort Liability Act (“GTLA”) for injuries
sustained by the plaintiff when she slipped on a hallway floor at Oak Ridge High School, where she
was a student. At the conclusion of the plaintiff’s proof, the trial court granted the high school’s2
motion for an involuntary dismissal, finding that, while the plaintiff had proven the existence of
water on the floor, she had failed to prove that the high school knew or should have known about
the water. From this ruling, the plaintiff appeals. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and HERSCHEL P. FRANKS , J., joined.

Jerry Shattuck, Clinton, Tennessee, for the appellants, Lindsay E. Alford and David R. Alford, IV.

John C. Duffy, Knoxville, Tennessee, and James M. Webster, Oak Ridge, Tennessee, for the
appellee, The Oak Ridge City Schools.

                                                      OPINION




         1
          David R. Alford, IV, filed this lawsuit on behalf of his daughter, who was then still a minor. However, for ease
of reference, we will refer to Lind say E. A lford as “the plaintiff.”

         2
            The O ak Ridge City Schools operates Oak Ridge High Schoo l. For this reason, we will treat the defendant
as if it were O ak Ridge H igh School.
                                                    I.

       On December 23, 1999, the plaintiff, who was then a senior at the high school, underwent
knee surgery. Following the surgery, she needed crutches to ambulate. The plaintiff returned to
school on January 3, 2000, which was the first day of school following the holiday break.

       When the plaintiff arrived at the high school, she went to the office to obtain a key to the
elevators that were accessible only to handicapped students. Because the high school is constructed
on multiple levels, the plaintiff would require the use of the elevators to get to her third class in order
to avoid a long stairway. After attending her first two morning classes, the plaintiff used one
elevator, crutched down a hallway, and took the second elevator. The elevator doors opened onto
a hallway that, like the elevators, was reserved only for handicapped students. At the end of the
hallway was a door that opened onto a main hallway.

        After exiting the elevator, the plaintiff testified that she “crutched two or three times” and
then her “left crutch slipped out from under [her].” The plaintiff fell, causing her surgical incision
to open. When the plaintiff got up, she stated that she noticed blood on the floor from her knee and
also noticed that she had fallen in water. The plaintiff was able to crutch to the end of the hallway,
open the door, and call for help. As a result of her fall and the reopening of her incision, the plaintiff
had to undergo two more surgeries on her knee.

        The plaintiff and her father filed suit against the high school, claiming that the high school
“was negligent in the operation and maintenance” of the school and that the high school either knew
or should have known of the dangerous condition, i.e., the existence of water in the hallway. The
high school answered the complaint, denying any knowledge of the water in the hallway and
contending that it was immune from suit pursuant to the GTLA, Tenn. Code Ann. § 29-20-101, et
seq. (2000 & Supp. 2002).

        A bench trial was held on November 13, 2002. The plaintiff testified that the water which
she claimed caused her fall was not a puddle, but rather a film of water across the floor tiles. She
stated that she did not see the water before she fell and that she did not know how long the water had
been on the floor. The plaintiff also testified that she was unaware of anyone else falling in the
subject area.

        Several employees of the high school testified at the behest of the plaintiff, including the head
custodian, the assistant principal, and the vice-principal of student affairs. The head custodian, who
has been employed at the high school for twenty-five years and has served in his present capacity for
seventeen years, stated that he and his staff clean up any water or moisture as soon as they see it.
He testified that he had not been in the hallway at issue on the morning of January 3, 2000. He
further testified that the high school had not had any problems with water or moisture in the hallway
during his tenure, and he was not aware of any other students or staff members falling in the hallway.
Both the assistant principal and the vice-principal for student affairs testified that they had not been
in the hallway on the morning in question. The supervisor of operation and maintenance for The


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Oak Ridge City Schools also testified, stating that he was familiar with the hallway in which the
plaintiff fell, and that, after reviewing all work requests since 1999, there were no reports of water
problems in that hallway.

        At the conclusion of the plaintiff’s proof, the high school moved for an involuntary dismissal
pursuant to Tenn. R. Civ. P. 41.02. The trial court found that the plaintiff had carried her burden of
proof with respect to the existence of the water on the hallway floor. However, as to the issue of
notice, the trial court found that the plaintiff did not prove by a preponderance of the evidence that
the high school knew or should have known of the existence of the dangerous condition in the
hallway. The trial court then ruled in favor of the high school and dismissed the plaintiff’s claim.

                                                  II.

        In the case of Atkins v. Kirkpatrick, we addressed the procedures by which a trial court is
to determine whether to grant a Rule 41.02 motion for involuntary dismissal:

               If a motion to dismiss is made at the close of Plaintiffs’ proof in a
               non-jury case, under [Tenn. R. Civ. P.] 41.02(2), the trial court must
               impartially weigh and evaluate the evidence just as though it were
               making findings of fact and conclusions of law after presentation of
               all the evidence. If the plaintiff’s case has not been established by a
               preponderance of the evidence, the case should be dismissed if, on the
               facts found in [sic] the applicable law, plaintiff has shown no right to
               relief. City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734
               (Tenn. 1977).

Atkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn. Ct. App. 1991); see also Smith v. Inman Realty
Co., 846 S.W.2d 819, 822 (Tenn. Ct. App.1992); Derryberry v. Hill, 745 S.W.2d 287, 290 (Tenn.
Ct. App.1987).

        Our standard of review of a trial court’s decision to grant an involuntary dismissal under Rule
41.02 is in accordance with Tenn. R. App. P. 13(d). Atkins, 823 S.W.2d at 552; Irvin v. City of
Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App.1988); Derryberry, 745 S.W.2d at 290. Thus, we
are required to review the record de novo and to presume that the factual findings of the trial court
are correct, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Atkins, 823
S.W.2d at 552; Irvin, 767 S.W.2d at 653; Derryberry, 745 S.W.2d at 290.

                                                 III.

       The issue in this case causes us to focus on the following provisions of the GTLA:




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                              Tenn. Code Ann. § 29-20-201 (2000)

               (a) 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.

                                               ***

               (c) When immunity is removed by this chapter any claim for damages
               must be brought in strict compliance with the terms of this chapter.

                              Tenn. Code Ann. § 29-20-204 (2000)

               (a) Immunity from suit of a governmental entity is removed for any
               injury caused by the dangerous or defective condition of any public
               building, . . . 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 . . . .

                              Tenn. Code Ann. § 29-20-205 (2000)

               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:

                                               ***

               (4) a failure to make an inspection, or by reason of making an
               inadequate or negligent inspection of any property;

(Emphasis added).

                                                IV.

         The GTLA provides general immunity to all governmental entities, removing that immunity
only in limited and specified instances. Kirby v. Macon County, 892 S.W.2d 403, 406 (Tenn. 1994).
The facts of the instant case implicate Tenn. Code Ann. § 29-20-204(a), which removes a
governmental entity’s immunity from suit “for any injury caused by the dangerous or defective
condition of any public building, . . . owned and controlled by such governmental entity.” The trial


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court found that the plaintiff proved the existence of water on the hallway floor, i.e., a dangerous
condition and the high school does not challenge this finding. Therefore, the only issue that we must
decide is whether the trial court was correct in determining that the plaintiff failed to prove the high
school had the requisite notice of the dangerous condition.

        Generally speaking, a property owner or operator is subject to liability for a dangerous or
defective condition on its premises if the condition (1) was created by the owner/operator or its
agent, or (2) was created by someone other than the principal or its agent, and the principal had
actual or constructive notice that the condition existed prior to the accident. Hardesty v. Serv.
Merch. Co., 953 S.W.2d 678, 682 (Tenn. Ct. App. 1997); Martin v. Washmaster Auto Ctr., U.S.A.,
946 S.W.2d 314, 318 (Tenn. Ct. App. 1996).

       In the instant case, there is absolutely no evidence that the high school was directly
responsible for creating the water-on-the-floor condition that caused the plaintiff to fall.
Furthermore, the plaintiff concedes that she cannot prove that the high school had actual notice of
the dangerous condition. Therefore, we need only focus on the issue of constructive notice.

        Constructive notice has been defined as “information or knowledge of a fact imputed by law
to a person (although he [or she] may not actually have it), because he [or she] could have discovered
the fact by proper diligence, and his [or her] situation was such as to cast upon him [or her] the duty
of inquiring into it.” Kirby, 892 S.W.2d at 409. “Constructive knowledge can be shown by proving
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.” Martin, 946 S.W.2d at
318.

          In Lindgren v. City of Johnson City, 88 S.W.3d 581 (Tenn. Ct. App. 2002), this court held
that the city had constructive notice of a defective sewer cover where the cover showed evidence of
neglect over a long period of time. Id. at 584-85. In the instant case, there is absolutely no evidence
as to how long the water had been on the hallway floor. The high school employees who testified
at trial all stated that they had not been in the hallway on the morning the plaintiff was injured, which
was the first day of classes after the holiday break. Moreover, the head custodian and the supervisor
of maintenance for the school system both testified that they were unaware of any reports of or
problems with water or moisture in the hallway. Accordingly, the evidence does not preponderate
against the trial court’s finding that the plaintiff failed to prove constructive notice. See McCorkle
v. County of Dyer, C/A No. 02A01-9701-CV-00020, 1998 WL 155437 (Tenn. Ct. App. W.S., filed
April 6, 1998) (holding that plaintiff, who was injured after tripping on torn carpet, failed to prove
constructive notice, as there was insufficient evidence as to how long the tears had been in the
carpet).

        The plaintiff argues that the high school “should have a duty to conduct a routine inspection
of hallway floors to discover a dangerous and defective condition that compounds foreseeability of
personal injury to physically handicapped students required to use that hallway.” An inspection, the



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plaintiff argues, would have revealed this dangerous condition, and such a duty to inspect gives rise
to constructive notice.

        The plaintiff’s reliance on such an argument is misplaced. Tenn. Code Ann. § 29-20-205(4)
specifically states that governmental immunity is not removed when the claimed negligence is based
upon a failure to inspect. Liability in the instant case cannot be predicated on a failure to inspect
because, under the GTLA, a governmental entity is immune from such suits.

        In the absence of proof of a dangerous condition created by the high school or proof of actual
or constructive notice of a dangerous condition created by another, the high school is immune from
suit and the trial court was correct in dismissing the plaintiff’s suit.

                                                 V.

       The judgment of the trial court is affirmed. This case is remanded for the collection of costs
assessed below, pursuant to applicable law. Costs on appeal are taxed to the appellants, Lindsay E.
Alford and David R. Alford, IV.



                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




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