                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                            October 15, 2012 Assigned on Brief

                        MARTHA McCORMICK
                                v.
                 WARREN COUNTY BOARD OF EDUCATION

                   Appeal from the Circuit Court of Warren County
                           No. 2437 Buddy D. Perry, Judge


                No. M2011-02261-COA-R3-CV - Filed January 15, 2013


This appeal involves a GTLA claim for personal injuries arising out of alleged negligence.
The plaintiff suffered personal injuries after falling in a hole in a school football field. The
plaintiff filed this lawsuit against the defendant board of education alleging negligence by
failure to maintain the school premises and failure to warn. As defenses, the defendant board
of education asserted governmental immunity and comparative fault. After a bench trial, the
trial court held that the board of education had constructive notice of the hole in the football
field and so did not have governmental immunity, and awarded the plaintiff monetary
damages. The board of education now appeals, challenging the trial court’s holding on
governmental immunity and arguing the plaintiff’s comparative fault. We affirm the trial
court’s holding as to governmental immunity, but remand on the issue of comparative fault
for findings of fact and conclusions of law pursuant to Rule 52.01 of the Tennessee Rules
of Civil Procedure.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Ricky L. Stacy, McMinnville, Tennessee, for Defendant/Appellant, Warren County Board
of Education

Sonya W. Henderson, Murfreesboro, Tennessee, for Plaintiff/Appellee, Martha McCormick
                                         OPINION

                            F ACTS AND P ROCEEDINGS B ELOW

Plaintiff/Appellee Martha McCormick (“McCormick”) was born in Warren County,
Tennessee in 1943 and has lived there her entire life. She has raised six children and several
grandchildren.       On May 13, 2005, McCormick attended the ceremony for her
granddaughter’s graduation from Warren County High School, held at Nunley Stadium in
McMinnville, Tennessee. The Stadium adjoined a football field with a track around it, and
the football field stood between the Stadium and the parking lot where the family’s cars were
parked. After the ceremony ended at approximately 7:30 or 8:00 p.m., McCormick, her
daughters, and two grandsons walked across the football field to return to the parking lot.
As McCormick and her family crossed the football field, she walked around a drainage grate
in the field and stepped into a large hole near the grate. In doing so, McCormick fractured
her left ankle. She was immediately taken to the local hospital’s emergency room.

A few days later, McCormick visited orthopaedist Donald M. Arms, M.D. (“Dr. Arms”), who
examined her fractured ankle. Dr. Arms gave McCormick pain medication and had her wear
a medical boot for six weeks. By August 2005, McCormick was able to resume her regular
activities.

Several months later, in April 2006, McCormick sustained a second fracture to her left ankle,
in approximately the same place as the first fracture. She returned to Dr. Arms for this
second fracture. He again had her wear a medical boot for another six to eight weeks.

In May 2006, McCormick filed this lawsuit against Defendant/Appellant Warren County
Board of Education (“Board”) in the Circuit Court of Warren County, Tennessee. The lawsuit
alleged negligence for failing to maintain the school football field in a reasonably safe
condition and failing to adequately warn of the dangerous hole in the field. McCormick
sought $100,000 in compensatory damages based on her medical bills, her inconvenience,
permanent loss of enjoyment of life, mental anguish, and pain and suffering. In its answer,
the Board denied any negligence. As affirmative defenses, the Board asserted, inter alia, all
available defenses under the Tennessee Governmental Tort Liability Act (GTLA). Discovery
ensued.

In June 2008, the Board filed a motion for summary judgment. In the motion, the Board
argued that the hole in the football field was covered with grass and thus was a latent
defective condition; consequently, it was immune from liability under the GTLA. In
response, McCormick argued that there were questions of fact regarding the hole and filed



                                             -2-
the deposition of school athletic director Andrew Jacobs in support of her response.1 In July
2010, the trial court denied the motion for summary judgment.

In May 2011, the Board filed a motion to amend its answer to assert comparative fault as an
affirmative defense. The Board noted that other walkways were available to McCormick but
she nevertheless chose to walk through an “obvious drainage area.” The Board filed its
amended answer on the day the trial commenced, but for reasons that are not apparent from
the record, the agreed order permitting the amended answer, stating that the Board “shall file
its First Amended Answer following entry of this Order but prior to trial,” was not entered
until August 5, 2011, over a month after the trial took place.

The trial court conducted a bench trial on June 14, 2011. It heard testimony from three
witnesses and also considered the deposition of McCormick’s orthopaedist, Dr. Arms.

At trial, McCormick testified that she had walked across the football field with her
grandchildren many times before the evening in question, and that other people who had
attended the graduation ceremony were walking across the football field as well.
McCormick acknowledged that she could have gotten to the parking lot by walking “all the
way around,” walking on a bank, or around the track; she conceded that some of the other
attendees took such a route, but noted that it was considerably farther than crossing the
football field. McCormick testified that the majority of the attendees walked across the grass
on the football field, as she did.

McCormick explained that, while walking across the football field, she saw the drainage
grate in the grass and walked around it, only to step into the hole near the grate. McCormick
could not recall if she saw the hole before stepping into it: “I really wasn’t looking down,
you know. I don’t think. It’s been so long ago.” When she crossed the football field to get
to the graduation ceremony, McCormick was unaware of the hole in the field, no one
mentioned anything about it to her and she did not notice either the hole or the drainage grate.
Shown photographs of the hole, McCormick testified that it was so deep that when she fell
in, it came almost up to her knee.

At the time of the accident, McCormick was not working outside the home. After the
accident, she testified, she was unable to do anything for herself even inside her home, such
as getting to the bathroom, cooking, and cleaning. For four or five weeks after the accident,
a family member had to be with her “practically all the time.” McCormick said that the
fractured ankle left her in a lot of pain.


1
    As discussed below, this deposition is not contained in the record on appeal.

                                                      -3-
Eight weeks after her fall on the football field, McCormick was able to resume her normal
activities, even though her injured ankle remained weak. In April 2006, less than a year after
the accident, McCormick walked off the back steps of her home, set her weak foot down
first, and the same ankle broke again. McCormick was once again placed in a medical boot
for six to eight weeks, and family members had to assist her during this second recovery.
Because of the two incidents, McCormick had a total of about four months in which she
could not perform everyday tasks and required assistance from family. By the time of trial,
McCormick was fully healed, but her injured ankle caused her mild pain from time to time.
She took care to always have her cell phone with her, even going to the mailbox, for fear of
falling again.

The trial court also heard testimony from McCormick’s daughter, Angela McCormick
(“Angela”). Angela had attended three or four other graduation ceremonies at Nunley
Stadium and corroborated McCormick’s testimony that most attendees walk across the
football field to get between the Stadium and the parking lot. She said that the grass around
the hole “wasn’t real tall” but was “just like your yard or something.” Angela testified that
she and other family members took care of McCormick while she recovered from her injury,
adding, “[s]omebody had to be with her.”

Another one of McCormick’s daughters, Nancy Knowles (“Knowles”), testified as well. She
reiterated the testimony by McCormick and Angela that persons attending graduation
ceremonies at Nunley Stadium frequently cross the football field between the Stadium and
the parking lot and said there were no guides directing attendees to use another route.
Knowles confirmed that the hole was in a mowed area of the football field. She saw her
mother fall into the hole. Knowles corroborated the earlier testimony regarding the care
McCormick required from her children while she was recovering from her initial injury.
Even after McCormick recovered, Knowles said, she continued to experience occasional pain
and remained unsteady on her feet.

McCormick also submitted into evidence the deposition testimony of Dr. Arms. Dr. Arms
confirmed that McCormick fractured her left ankle in May 2005 by stepping in the hole on
the football field. He prescribed narcotics for her pain and had her wear a boot for several
weeks. He said that her fracture lined up appropriately and was healing. Generally, Dr.
Arms said, patients with this type of injury can be left with intermittent instability and
swelling.

In April 2006, Dr. Arms testified, McCormick returned to his office after she fell at her home
and broke the same ankle a second time. He said that she had rebroken her left ankle in the
same place, stating, “it’s essentially . . . the same old fracture.” This fracture was treated in


                                               -4-
the same manner as the first. He gave McCormick no specific impairment rating, but said
that persons with these injuries often have permanent residual weakness and loss of balance.
Dr. Arms was unwilling to testify to a reasonable degree of medical certainty that the second
fracture was related to the first:

        I can’t with any medical probability say that the second injury would or would
        not have occurred with or without the first one, meaning I think they are two
        separate events caused by two separate traumatic episodes. And the second
        ankle fracture was probably just as likely to have happened without the first.
        So the odds are 50-50. I can’t say that I’m 51 percent sure that they are
        related.

Dr. Arms also confirmed that McCormick’s medical bills in the amount of $3,586.38 were
reasonable, necessary, and customary for treatment of this type of injury.2 In the future, Dr.
Arms predicted, McCormick will “intermittently require medication options, [and]
intermittent brace wear . . . . She’ll note increased discomfort with weather change or
overuse,” but would not require surgery.

That concluded McCormick’s evidence. The Board offered no witnesses of its own and
rested its case at the conclusion of the plaintiff’s proof. The trial court instructed counsel for
both parties to submit proposed findings of fact and conclusions of law and took the matter
under advisement.

On September 26, 2011, the trial court entered its order on the trial, setting forth its findings
of fact and conclusions of law. In the order, the trial court rejected the Board’s argument that
it should be immune from liability under the GTLA because the hole in the football field was
concealed by grass and thus was a latent defect:

        The board’s counsel[] argue[s] that the hole was concealed by grass, and is,
        therefore a latent defect. Consequently, counsel[] insists that the county by
        statute is immune from suit. Plaintiff’s counsel argues:




2
 The transcript of Dr. Arms’ deposition indicated that a total of $26,092.50 was reasonable for the total cost
of treatment for McCormick’s fractured ankle. It appears that this figure was an error in transcription; other
exhibits in the record indicate that the total amount spent on office visits, braces, and the like for
McCormick’s treatment was actually $2,692.50. Additionally, another $836.04 was spent on emergency
services and $57.84 on crutches for McCormick, for a combined total of $3,586.38 spent on medical
expenses for both ankle injuries.

                                                     -5-
               Although the Supreme Court does not explicitly state the
               relationship between constructive notice and latent defect issues
               in GTLA cases, it appears contradictory to hold that a Defendant
               had constructive notice, while concurrently ruling that the
               condition was a latent defect, or one which could be discovered
               by reasonable and customary inspection. Therefore either the
               condition could have been discovered by reasonable inspection,
               which would warrant constructive notice of a patently defective
               condition, or the condition could not have been discovered by a
               reasonable inspection, which would imply that the Defendant
               had no notice and the condition would qualify as a latent defect.

       I agree with the plaintiff’s contention that the hole in which the plaintiff
       stepped in should have been discovered by reasonable inspection, due to the
       regular use of, and maintenance conducted on the premise [sic] by the
       defendant.

Referring to “the photographs attached to the deposition of Andy Jacobs,” the trial court
made a factual finding that “the hole was too wide and too deep not to be seen or noticed in
any way by the Defendant prior to Plaintiff’s fall.” It noted that the Board’s employees and
other agents had maintained the football field where the hole developed and held that the
Board owed a duty of care to maintain the premises in a reasonably safe manner. The trial
court also found that the Board had superior knowledge of the premises and, had it done a
reasonably careful inspection, it should have discovered the hole in the football field. On this
basis, the trial court held that the Board had constructive notice of the defective or dangerous
condition, namely, the hole. Thus, the trial court held, the Board breached its duty of care
to invitees such as McCormick, by failing to inspect the premises in a reasonably careful
manner.

Based on these findings of fact and conclusions of law, the trial court ordered the Board to
pay McCormick $8,500 in unspecified damages.3 It also assessed costs against the Board.
The Board now appeals.




3
 The trial court made no express finding on the Board’s liability for McCormick’s second ankle injury
sustained by McCormick or whether the $8,500 judgment included compensation for permanent impairment.
Neither of these issues have been raised on appeal, so we do not address them.

                                                 -6-
                         ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, the Board raises two issues:

        I. Whether the concealed hole in the football field at Nunley Stadium
        constitutes a latent defective condition under Tennessee law for which
        Appellant Warren County Board of Education retains immunity from suit
        pursuant to T.C.A. § 29-20-204(b).

        II. Whether the trial court erred in failing to allocate any fault to Appellee
        Martha McCormick under the affirmative defense of comparative fault.

Because this matter was decided by the trial court without a jury, the trial court’s findings of
fact are reviewed de novo on the record, with a presumption that those findings are correct
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). For the evidence to
preponderate against the trial court’s factual finding, it must support another finding of fact
with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 70-71
(Tenn. Ct. App. 2000); Realty Shop v. RR Westminster Holding., 7 S.W.3d 581, 596 (Tenn.
Ct. App. 1999)). The trial court’s conclusions of law are reviewed de novo, with no
presumption of correctness. Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d
415, 424-25 (Tenn. Ct. App. 2005). It is also well settled that a trial court’s assessment of
witness credibility is entitled to great weight on appeal because the trial court saw and heard
the witness testify; thus, we defer to the trial court’s assessment on credibility absent clear
and convincing evidence to the contrary. C&W Asset Acquisition, LLC v. Oggs, 230 S.W.3d
671, 676 (Tenn. Ct. App. 2007).

                                               A NALYSIS

                                      Governmental Immunity

The Board argues first that it is immune from liability under the GTLA. The Board does not
appear to challenge the trial court’s finding that the hole in the football field was a defective
or dangerous condition.4 It contends that the hole was a latent defective condition, and that
the evidence does not support the trial court’s finding that the Board had constructive notice



4
 Likewise, the Board does not dispute the trial court’s findings that the Board is a governmental entity and
the football field in question is a public improvement owned by the Board. Tenn. Code Ann. § 29-20-204(a);
see Petty v. City of White House, No. M2008-02453-COA-R3-CV, 2009 WL 2767140, at *5; 2009 Tenn.
App. LEXIS 599, at *12-14 (Tenn. Ct. App. Aug. 31, 2009) (classifying a field owned and maintained by
a city as a “public improvement”).

                                                    -7-
of the hole. For these reasons, the Board maintains that the trial court erred in concluding
that it was not immune from liability under the GTLA.

 The GTLA provides that “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.” Tenn. Code Ann. § 29-20-201(a) (2008). Governmental
immunity, however, can be removed under certain circumstances. Helton v. Knox County,
Tenn., 922 S.W.2d 877, 881-82 (Tenn. 1996); Petty v. City of White House, No. M2008-
02453-COA-R3-CV, 2009 WL 2767140, at *4; 2009 Tenn. App. LEXIS 599, at *10-11
(Tenn. Ct. App. Aug. 31, 2009). Pertinent to this appeal, under Tennessee Code Annotated
§ 29-20-204, governmental immunity for liability for a dangerous or defective condition may
be removed under the following circumstances:

        (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 . . . .5

Tenn. Code Ann. § 29-20-204 (2012). Thus, McCormick may recover against the Board if
she is able to prove that the preponderance of evidence establishes that the hole in the
football field was not a latent defective condition, and that the Board had constructive notice
of the dangerous or defective condition.6 See Wright v. City of Lebanon, No.
M2010-00207-COA-R3-CV, 2011 WL 721508, at *2; 2011 Tenn. App. LEXIS 99, at *6
(Tenn. Ct. App. Mar. 1, 2011); Barnett v. Gallatin Dept. of Energy, No. 01-A-01-9104-CV-
000134, 1991 WL 213207, at *2; 1991 Tenn. App. LEXIS 833, at *3 (Tenn. Ct. App. Oct.
23, 1991).




5
 Section 29-20-204(b) refers to the procedural notice requirements in Tennessee Code Annotated § 29-20-
302. However, Section 29-20-302 has since been repealed. See 1987 Pub. Acts. c.405, § 7.
6
 There is no evidence in the record that the Board had actual notice of the hole in the football field, so the
issue on appeal involves only constructive notice.

                                                     -8-
                                 Latent Defective Condition

The Board argues that the evidence preponderates against the trial court’s finding that the
hole in the football field was not a “latent defect” within the meaning of Section 29-20-
204(b). Because the evidence showed that the hole was completely concealed by grass, the
Board argues, reasonable inspection in the course of the regular use and maintenance of the
property would not have led to discovery of it. It cites Waddell v. Greenelawn Memory
Gardens, Inc. in support of its contention that a hole on a piece of land that is “concealed by
vegetation” constitutes a latent defect. See Waddell v. Greenelawn Memory Gardens, Inc.,
No. E2008-02522-COA-R3-CV, 2009 WL 2877290, at *14; 2009 Tenn. App. LEXIS 610,
at *10 (Tenn. Ct. App. Sept. 8, 2009) (reversing grant of summary judgment and finding
disputed issue of fact as to whether obscured hole was latent defect).

A latent defect under Section 29-20-204(b) has been defined as “[a] hidden or concealed
defect . . . which could not be discovered by reasonable and customary inspection” and as
“[a] defect which reasonably careful inspection will not reveal.” Hawks v. City of
Westmoreland, 960 S.W.2d 10, 17 (Tenn. 1997) (quoting Black’s Law Dictionary 794 (5th
ed. 1979) and Vincent v. Salt Lake County, 583 P.2d 105, 107 (Utah 1978)); Wright, 2011
WL 721508, at *8; 2011 Tenn. App. LEXIS 99, at *23. We consider the evidence and the
Board’s argument with this definition in mind.

Although Waddell, cited by the Board, involves a lawsuit in which the plaintiff sued for
personal injuries sustained after falling in a hole on the defendant’s property, we find that it
is not helpful in determining the issue presented by the Board in this appeal. In Waddell,
the trial court granted summary judgment in favor of the defendant landowner, citing the
plaintiff’s statements that he was aware that the unimproved property was unsafe to walk on
and evidence that a sidewalk was available to the plaintiff. After the plaintiff appealed, the
appellate court found that summary judgment in favor of the defendant was inappropriate in
light of evidence that the hole, in a “a solid pile of rocks/cinderblock/debris,” was obscured
by vegetation and that the sidewalk route was not a viable option for the plaintiff under the
circumstances of the case. See Waddell, 2009 WL 2877290, at *1; 2009 Tenn. App. LEXIS
610, at *2-4. Thus, Waddell concluded that the evidence of vegetation obscuring the hole
on the premises created a disputed issue of fact as to whether the plaintiff should have seen
the hole and whether the defendant should have warned the plaintiff of it. In the case at bar,
we are not presented with a ruling on a summary judgment motion but rather with a finding
of fact based on evidence submitted at trial. So the holding in Waddell, that the vegetation
covering the hole created an issue of fact on whether the hole was a latent defect, does not
assist us in assessing the preponderance of the evidence presented at trial in this case.

The Board insists that this Court should hold that the hole in the football field “constitutes
a latent defect as a matter of law for which immunity is not removed,” pointing to the

                                              -9-
undisputed fact that the hole had grass growing in it and around it, and the fact that plaintiff
McCormick did not see the hole while walking through the football field. We decline to hold
that the hole in the football field was, as a matter of law, a latent defect. The evidence at trial
included testimony by McCormick’s daughters that the hole was located in a mowed area and
that the grass around the hole “wasn’t real tall” and was “just like your yard or something.”
The Board put on no evidence contradicting their testimony and it was apparently credited
by the trial court. McCormick’s testimony was inconclusive at best; she testified that she
could not recall whether she could see the hole, and said that she was not looking down at
that time that she fell. Finally, the record includes the photographs of the hole in the football
field that were submitted into evidence, which this Court reviews in the same manner as the
trial court. See Ingram v. Wasson, 379 S.W.3d 227, 237 (Tenn. Ct. App. 2011). After
reviewing the evidence in the record as a whole, we cannot conclude that it preponderates
against the trial court’s holding that the hole in the football field was not a “latent defective
condition” within the meaning of Section 29-20-204(b).

                                      Constructive Notice

The Board also contends that the trial court erred in holding that the Board should have
discovered the defective and dangerous condition on the premises – the hole in the football
field – with reasonably careful inspection, and therefore had constructive notice of it. It
argues vigorously that this holding is not supported by the proof in the record. The Board
maintains that no proof was presented concerning how the field was used in Fall 2004 other
than for football games and the graduation ceremony McCormick attended, and that there
was no proof regarding the last time the property had been used, the maintenance schedule
of the property, or how long the hole had existed. The Board contends that the trial court
could only have held that the hole McCormick stepped in “should have been discovered by
reasonable inspection, due to regular use of [], and maintenance conducted on the premise
by defendant” by assuming facts not in the record. For this reason, the Board contends that
the evidence preponderates against the trial court’s holding that the Board had constructive
notice of the hole, that it failed to maintain and inspect the premises in a reasonably safe
manner, and that it breached its duty of care to invitee McCormick.

In a case such as this, the question of constructive notice of a defective or dangerous
condition is related to the question of whether the condition constitutes a latent defective
condition; the two are essentially flip sides of the same coin. Tennessee cases define
constructive notice 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 to cast upon him the duty of inquiring into it.” Hawks,
960 S.W.2d at 15 (quoting Kirby v. Macon County, 892 S.W.2d 403, 409 (Tenn. 1994));
Petty, 2009 WL 2767140, at *6; 2009 Tenn. App. LEXIS 599, at *16. “Proof that a
governmental entity failed to adequately inspect property or improvements which it owned

                                               -10-
and controlled is directly relevant to the question of whether it had constructive notice of the
dangerous or defective condition resulting in injury.” Hawks, 960 S.W.2d at 16; Wright,
2011 WL 721508, at *7; 2011 Tenn. App. LEXIS 99, at *19 (“Constructive notice depends
not on when an injury occurs but on when a governmental entity fails to exercise reasonable
diligence.”). As stated above, the issue of whether the Board in this case had constructive
notice of the hole is a question of fact. Petty, 2009 WL 2767140, at *6; 2009 Tenn. App.
LEXIS 599, at *17 (citing Reed v. Greene County, No. E2004-00090-COA-R3-CV, 2005
WL 100843, at *4; 2005 Tenn. App. LEXIS 19, at *13 (Tenn. Ct. App. Jan. 19, 2005)).

At the outset, we note that the deposition of the school’s athletic director, Andrew Jacobs,
was apparently filed in connection with the Board’s pre-trial motion for summary judgment,
but was not included in the appellate record before this Court. The appellate record contains
a “notice of filing” of the deposition and related exhibits and attachments, and it is referred
to in McCormick’s response to the Board’s summary judgment motion.7 McCormick’s
response to the Board’s summary judgment motion contains McCormick’s statement of
undisputed facts, including the following:

        12. The depressed area around the drain gate was located inside the asphalt
        track of Nunnelly Stadium. (Deposition of Andrew Wesley Jacobs, hereinafter
        referred to as “Dep. A.J.”, pp. 10-11).
        13. All those who performed ground maintenance upon the specific area of the
        stadium inside the track were paid employees of the Defendant. (Dep. A.J. pp.
        10).
        14. The area of the football field inside the track was mowed between one and
        three times per week around the time of the accident on May 13, 2005. (Dep.
        A.J. pp. 16).

The record does not contain any indication that the Board filed a response asserting that the
material undisputed facts as presented by McCormick, citing Jacobs’ deposition, were either
inaccurate or disputed. See Tenn. R. Civ. P. 56.03. The trial court’s September 2011 order,
with its findings of fact and conclusions of law, refers to the photographs attached to Jacobs’
deposition. The appellate record includes photographs of the subject hole, but it is not clear
whether the photographs in the record are the same photographs that were made exhibits to
Jacobs’ deposition. No issue on appeal is raised as to the trial court’s consideration of
Jacobs’ deposition in making its findings of fact and conclusion of law.



7
 McCormick’s appellate brief contains citations to Jacobs’ deposition and summarizes his testimony, which
purportedly explained the maintenance and mowing schedules for the football field and who was responsible
for overseeing the condition of the field. Arguments in the appellate briefs are not evidence, so we decline
to consider the summary of Jacobs’ deposition testimony contained in the appellate briefs.

                                                   -11-
In evaluating whether the trial court’s findings are supported by a preponderance of the
evidence, it is incumbent upon this Court to consider all of the evidence that was available
to the trial court. Even if Jacobs’ deposition was not transmitted to this Court as part of the
appellate record, it is apparent that it was made available to the trial court, as well as the
material undisputed facts asserted by McCormick, taken from Jacobs’ deposition testimony
and not disputed by the Board. Consequently, in evaluating whether the trial court’s findings
are supported by a preponderance of the evidence, we consider the entirety of the evidence
available to the trial court.

Considering the testimony of the witnesses, the photographs in the appellate record, and the
entirety of the evidence available to the trial court, we cannot find that the evidence
preponderates against the trial court’s findings that the Board’s employees and agents
maintained the football field, that they had superior knowledge of the premises and a duty
to invitees such as McCormick to inspect and maintain the premises in a reasonably safe
manner, and that the subject hole was of a width and depth that the Board or its agents should
have discovered it before McCormick’s fall. Considering the record as a whole, we cannot
conclude that the trial court erred in holding that the Board had constructive notice of the
dangerous condition and thus was not immune from liability under the GTLA.

                                    Comparative Fault

In the alternative, the Board notes that it asserted comparative fault as an affirmative defense
and contends that the trial court erred in failing to allocate any fault to McCormick. The
Board observes that McCormick admitted that she was not looking down when she fell into
the hole in the football field and argues that this was negligence that should have been taken
into account in the trial court’s decision. The Board also notes the undisputed evidence that
there were other safer walkways available to McCormick, but she nevertheless chose to walk
“in an obvious drainage area without paying attention to where she was walking.” This, the
Board argues, constitutes fault by McCormick that should have been a factor in the trial
court’s decision.

The apportionment of fault in a negligence case is a question of fact. Hocker v. State, No.
E2008-02638-COA-R3-CV, 2009 WL 3518164, at *6; 2009 Tenn. App. LEXIS 735, at *6
(Tenn. Ct. App. Oct. 30, 2009); Wilson v. Pickens, 196 S.W.3d 138, 143 (Tenn. Ct. App.
2005). In this appeal, we are asked to review the trial court’s allocation of fault. While the
trial court made explicit findings of fact and conclusions of law on numerous other issues
presented in the case, it made no express findings on comparative fault. The Board raised
the affirmative defense of comparative fault in an amendment to its answer; the amended
answer was filed the day the trial began, and an agreed order allowing the amendment was




                                              -12-
entered.8 The trial included testimony pertinent to the issue of comparative fault, such as
McCormick’s admission in her testimony that there were other walkways available to her and
that she was not looking at the ground at the time she fell into the hole in the football field.
Despite this, no express findings were made on whether McCormick had some degree of
fault for her injuries.

Moreover, the trial court simply awarded McCormick damages in the amount of $8500, with
no explanation as to how it arrived at this amount. The damages awarded are more than
McCormick’s medical expenses but less than the amount of damages McCormick sought
against the Board. There is no indication as to whether the trial court’s award reflects an
implicit finding of comparative fault against McCormick.

In a bench trial, the Tennessee Rules of Civil Procedure require trial courts to issue findings
of fact and conclusions of law. Rule 52.01 of the Tennessee Rules of Civil Procedure
provides:

        In all actions tried upon the facts without a jury, the court shall find the facts
        specially and shall state separately its conclusions of law and direct the entry
        of the appropriate judgment. The findings of a master, to the extent that the
        court adopts them, shall be considered as the findings of the court. If an
        opinion or memorandum of decision is filed, it will be sufficient if the findings
        of fact and conclusions of law appear therein. . . .

Tenn. R. Civ. P. 52.01 (2012).9 The legislature’s decision to require findings of fact and
conclusions of law is “not a mere technicality.” Paul v. Watson, No.
W2011-00687-COA-R3-CV, 2012 WL 344705, at *5; 2012 Tenn. App. LEXIS 65, at *14-15


8
 On appeal, McCormick argues that the appellate court should not consider the issue of comparative fault
because she was not specifically identified in the pleading that asserts comparative fault, as required under
Rule 8.03 of the Tennessee Rules of Civil Procedure; the Board’s answer incorrectly referred to the allegedly
negligent actions of the Defendant rather than of the Plaintiff. McCormick also argues that she was not given
either the time or the opportunity to rebut the allegations that she was at fault, because the amended answer
was submitted on the day of trial. We note that the order granting the Board permission to file an amended
answer that asserted comparative fault, entered after the conclusion of the trial, was an “agreed order” signed
by McCormick’s counsel. McCormick does not dispute that her attorney consented to the amended answer,
so we consider these issues raised by McCormick to be waived.
9
 Prior to July 1, 2009, trial courts were required to make specific findings of fact and conclusions of law only
“upon request made by any party prior to the entry of judgment.” See Poole v. Union Planters Bank N.A.,
337 S.W.3d 771, 791 (Tenn. Ct. App. 2010) (noting the amendment). As amended, Rule 52.01 requires the
trial court to make these findings, even if neither party requests them. Id.

                                                     -13-
(Tenn. Ct. App. Feb. 2, 2012) (citing In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL
1362314, at *8; 2009 Tenn. App. LEXIS 225, at *20-23 (Tenn. Ct. App. May 15, 2009)).
It serves the important purpose of “facilitat[ing] appellate review and promot[ing] the just
and speedy resolution of appeals.” Id. (citing White v. Moody, 171 S.W.3d 187, 191 (Tenn.
Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn. Ct. App. 1990)). “Without such
findings and conclusions, this court is left to wonder on what basis the court reached its
ultimate decision.” Paul, 2012 WL 344705, at *5; 2012 Tenn. App. LEXIS 65, at *14-15;
In re K.H., 2009 WL 1362314, at *8 ; 2009 Tenn. App. LEXIS 225, at *20-23 (quoting In
re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19, 2004 Tenn. App.
LEXIS 250, at *58 (Tenn. Ct. App. April 21, 2004)).

In the absence of findings of fact and conclusions of law on the Board’s defense of
comparative fault, we are unable to effectively review the trial court’s allocation of fault.
Under these circumstances, we are left with little choice but to remand the case for findings
of fact and conclusions of law pursuant to Rule 52.01 of the Tennessee Rules of Civil
Procedure on the issue of comparative fault.

                                       C ONCLUSION

The decision of the trial court is affirmed in part and remanded for further proceedings
consistent with this opinion. Costs on appeal are assessed against Defendant/Appellant
Warren County Board of Education and its surety, for which execution may issue if
necessary.




                                                          ___________________________
                                                            HOLLY M. KIRBY, JUDGE




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