                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 August 12, 2014 Session

      PAMELA BARKLEY, ET AL. V. SHELBY COUNTY BOARD OF
                        EDUCATION

                   Appeal from the Circuit Court for Shelby County
                   No. CT00555210     Robert Samual Weiss, Judge




                 No. W2014-00417-COA-R3-CV - Filed March 18, 2015


Action under the Tennessee Governmental Tort Liability Act to recover for injuries sustained
in a slip and fall at a school operated by the Shelby County Board of Education. In a bench
trial, the court held the school board 60% liable and plaintiff 40% liable and awarded
plaintiffs damages totaling $29,400. The Board of Education appeals the holdings that it was
negligent, that its immunity was removed, and that the plaintiff was less than 50% at fault
for her injury. While the evidence does not preponderate against the finding that plaintiff fell
on water in the school hallway, there is no evidence that the Board had notice of the water;
consequently, we reverse the judgment of the trial court and dismiss the case.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which J. S TEVEN S TAFFORD,
P. J., W. S., and W. M ICHAEL M ALOAN, S P., J., joined.

Valerie B. Speakman, Arlington, Tennessee, for the appellant, Shelby County Board of
Education.

David A. McLaughlin, Memphis, Tennessee, for the appellees, Pamela Barkley and James
Barkley.
                                   MEMORANDUM OPINION 1

        This is an action under the Tennessee Governmental Tort Liability Act, Tenn. Code
Ann. § 29-20-101 et seq., (“GTLA”) to recover for injuries sustained by Pamela Barkley, the
grandmother of two children who attended Riverdale Elementary School in Memphis, when
she fell in a hallway at a Grandparent’s Day event; the school is operated by the Shelby
County Board of Education (“the Board”). Following trial, the court made findings of fact
and conclusions of law, on the basis of which it assessed damages at $45,000 for Ms. Barkley
and $4,000 for the loss of consortium claim of her husband, James. The court determined
that Ms. Barkley was 40% at fault, reduced the damages accordingly, and entered judgment
for the plaintiffs in the total sum of $29,400.

       School Board appeals, articulating the following issues:

       1. Whether the proof in the record preponderates against the Trial Court’s
       finding that the SCBE was negligent.
       2. Whether the trial court erred by finding that the SCBE is not immune to suit
       pursuant to Tenn. Code Ann. § 29-20-205, or in the alternative the public duty
       doctrine.
       3. Whether the record preponderates against the trial court’s finding that the
       Plaintiff was not at least fifty percent at fault for her injury.

I. STANDARD OF REVIEW

        Because this case was tried without a jury, our review of the trial court’s findings of
fact is de novo, accompanied by a presumption of correctness, unless the preponderance of
the evidence is otherwise. See Tenn. R. App. P. 13(d); Kaplan v. Bugalla, 188 S.W.3d 632,
635 (Tenn. 2006). Our review of the trial court’s determinations regarding questions of law
is de novo with no presumption of correctness. Kaplan. 188 S.W.3d at 635.




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           Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.

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II. DISCUSSION

        Tenn. Code Ann. § 29-20-201(a) sets forth the general rule of governmental
immunity: “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.” Latter statutes remove
immunity for negligent operation of motor vehicles (Tenn. Code Ann. § 29-20-202), unsafe
streets and highways (Tenn. Code Ann. § 29-20-203), dangerous structures (Tenn. Code Ann.
§ 29-20-204), and negligent acts of employees (Tenn. Code Ann. § 29-20-205). As noted by
the court in Traylor ex rel. Traylor v. Shelby Cty. Bd. Of Educ.:

       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, No. W2013-00836-COA-R3-CV, 2014 WL 792131, at *8 (Tenn. Ct. App. Feb. 27,
2014), appeal denied (Aug. 26, 2014) citations omitted).

      In its ruling, the court made several findings of fact relative to the circumstances of
Ms. Blakely’s fall pertinent to the issues in this appeal:

       10. To reach a trash can, Plaintiff walked past a hand washing station that was
       in the hallway outside the boys’ restroom.
       11. Pamela Barkley was wearing “crocs” when she slipped and fell in water
       near the hand washing station.
       ***
       13. Syndi [sic] Whitaker also stated that she saw water in the area by the boy’s
       hand washing station and that people had tracked through it. She testified that
       there is soap available at the hand washing station.
       14. Pamela Barkley slipped and fell which resulted in her suffering an anterior
       hip dislocation and required medical treatment and physical therapy.

       Evidence at trial, exclusive of medical proof, consisted of the testimony of plaintiffs;
their granddaughter Sydney Whitaker; John Smith, Director of Facility Services for the
Board; James Smith, plant manager at Riverdale; David Carlisle, retired principal of

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Riverdale; Pat Miller, teacher at Riverdale; Rose Van Pelt, retired librarian at Riverdale;
Joseph Bond, Riverdale’s principal at the time of trial; and seven photographs and one
diagram which was prepared by Ms. Barkley and introduced at her deposition. The evidence
was conflicting, particularly with respect to whether Ms. Barkley fell on water which was on
the floor, as testified to by Ms. Barkley and her granddaughter, or whether the shoes she was
wearing caused her to fall and spill a cup she had in her hand, thereby accounting for the
water on the floor. Applying the standard of review at Tenn. R. App. P. 13(d), the evidence
does not preponderate against the finding that Ms. Barkley fell in water in the hallway near
the washing station adjacent to the boys’ restroom. There is, however, no evidence to
support a determination that the Board had notice of water on the floor at or near the location
of Ms. Barkley’s fall, sufficient either to remove its immunity or to otherwise establish
liability.

        We have been cited to no evidence that the Board had actual notice of water on the
floor; consequently, we review the evidence relative the court’s conclusion that the Board
had constructive notice.2

       Ms. Van Pelt, who was in the hall when Ms. Barkley fell, testified:

       Q. Okay. And can you tell us, did you see any water or substance in the floor
       before Mrs. Barkley fell?
       A. No, ma’am.
       ***
       Q. Okay. And did you see anything in her hand?
       A. Yes, ma’am, she had a cup in her hand.
       Q. Okay. And what happened to the cup when she fell?
       A. It fell, but I don’t remember what, you know, happened to it other than she
       had it in her hand and it, I think it fell in the floor.
       Q. Okay. But you’re saying you don’t know what happened after - -
       A. No, no, I don’t know.
       Q. - - it hit the floor?
       A. No, I don’t know what happened to it.




       2
           In the conclusions of law portion of its ruling, the court held:

       3. Because the hand washing station is located in the common hallway, the Shelby County
       Board of Education is on actual and constructive notice of water and soap accumulating in
       the area where grammar school children wash their hands and the public travels.

                                                       4
      Q. Got you. Okay. Now, Ms. Van Pelt, in the whole time that you worked at
      Riverdale school, did you ever see anybody fall here where Mrs. Barkley fell?
      A. No, ma’am.

Ms. Miller, whose classroom was in the same hall near the hand washing station, testified:

      Q. . . . When you saw Mrs. Barkley did you see anything next to her or near her
      on the floor?
      A. In front of her it looked it, it appeared to me that she had a Chick-fil-A cup
      at one point and there was water in front of her. She was facing the lockers.
      Q. Okay. Did you look to see if there was any water other than what appeared
      to come from her cup?
      A. I most certainly did, yes.
      Q. And what did you determine?
      A. That I saw nothing that would indicate water was on the floor.
      Q. Okay. How many times had you come in the area where you saw Mrs.
      Barkley fall or in the boys hand washing station on November 19, 2009?
      A. How many times?
      Q. Yes, ma’am.
      A. Let’s see, every time the boys go to the restroom, every time we go - -
      every time I leave the room. Number of times?
      Q. Could it be dozens?
      A. Dozens.
      Q. All right.
      A. Most likely, yes, ma’am.
      Q. Now, on November 19, 2009 did you see any water in the floor other than
      from Mrs. Barkley’s cup in the hallway?
      A. No ma’am.
      Q. Okay. And on November 19, 2009 did you see any water at the boys hand
      washing station?
      A. I did not.
      ***
      Q. Okay. Now, you made this inspection for water while you were caring for
      her?
      A. I looked over to the sink area and did not see water.

James Smith testified:

      Q. Mr. Smith, when you came upon Mrs. Barkley in the hallway, did you see
      anything laying on the floor next to her?

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       A. It was a cup laying beside her.
       Q. Okay. Could you tell if there was any water in that cup or ice in that cup?
       A. I don’t think I saw any ice, but the water was by the cup.
       Q. Okay.
       A. So I went and, you know, dried it and got up the water.
       Q. So the water that you saw on the floor that you discussed earlier was next
       to the cup that you saw lying on the floor?
       A. Right.
       Q. Okay. And on the day, on Grandparents Day before you saw Mrs. Barkley
       lying in the perpendicular hallway that you marked on the photograph, had you
       seen any water in that hallway?
       A. No.
       Q. You didn’t see any water in the hallway where you put the red X, correct,
       other than what was spilled by the cup?
       A. No water in the hallway.

Mr. Carlisle, who had been principal at Riverdale for twenty-nine years, testified as follows:

       Q. So rarely at the boys hand washing station would there be any water on the
       floor, correct?
       A. Well, when you say any water, you’re talking about a dot or a spot, you
       know, I’m talking about water, there would not be lots of water at any time,
       that’s correct.
       Q. Would there be some water at any given time?
       A. Well, like I said, it could be a dot of water, a spot of water, I can’t tell you
       that. But I can tell you that the water standing on the floor didn’t stand for
       long. That room is right next to the assistant principal’s office, and so we were
       in and out all the time. If there were something on the floor we would have
       hollered for Mr. Smith or take care of it ourselves.
       ***
       Q. Okay. And the entire time that you worked at Riverdale school did you see
       or hear of anyone who fell where Mrs. Barkley fell?
       A. No. In fact, no one fell at any hand washing area, which is the reason why
       we didn’t have any anti-slip measures because it just had never happened, it
       never was a need.

       Plaintiffs presented no proof as to the length of time the water or other substance upon
which Ms. Barkley apparently fell had been present or any other fact upon which to conclude
that the Board had constructive notice of the specific condition. General knowledge that
such a condition may exist does not constitute constructive knowledge of a specific

                                               6
condition. See Hardesty v. Service Merchandise Co., Inc., 953 S.W.2d 678 (Tenn. Ct. App.
1997). In the absence of such proof, we respectfully disagree with the trial court’s holding
that the School Board had notice of the condition upon which Ms. Barkley slipped and fell.
Accordingly, there is no basis upon which to hold the School Board liable for her injuries.

       This holding pretermits all other issues raised on appeal.

                                     CONCLUSION

      For the foregoing reasons, the judgment of the trial court is reversed and the case
dismissed.




                                                 ________________________________
                                                 RICHARD H. DINKINS, JUDGE




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