                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  January 27, 2016 Session

        LARRY WILLIAMS v. CITY OF JAMESTOWN, TENNESSEE

                   Appeal from the Circuit Court for Fentress County
                      No. 2012CV2         John D. McAfee, Judge
                     ___________________________________

                  No. M2015-00322-COA-R3-CV – Filed June 23, 2016
                     ___________________________________


This appeal involves a visitor to a county courthouse who slipped and fell on ice in the
parking area. Because the portion of the parking area where the visitor fell was owned by the
city, the visitor filed suit against the city under the Tennessee Governmental Tort Liability
Act. Following a bench trial, the trial court dismissed the suit, finding that the city did not
breach a duty of care to the visitor. The trial court also found that, even if there had been a
breach of duty, the visitor was more than fifty percent at fault for his injuries. The visitor
appeals, claiming that the trial court’s written order does not accurately reflect its oral ruling,
that the city breached a duty of care by creating a dangerous condition that it did not remedy
in a reasonable manner and time, and that the evidence preponderates against the trial court’s
factual finding that he was more than fifty percent at fault. We affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of Circuit Court for Fentress
                                 County Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and RICHARD H. DINKINS, J., joined.

Kenneth S. Williams and James D. Madewell, Cookeville, Tennessee, for the appellant, Larry
Williams.

Daniel Hurley Rader IV, Cookeville, Tennessee, for the appellee, City of Jamestown.
                                         OPINION

                 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       In the afternoon of Thursday, January 20, 2011, snow started falling in the City of
Jamestown, Tennessee. The snow continued until the early morning hours of Friday, January
21, resulting in accumulations of up to six inches. In an effort to keep roads clear, City Road
Department personnel scraped and salted roads and parking lots until 10:30 p.m. on Thursday
evening and returned to work as early as 5:30 a.m. the next morning to continue their work.

       Overnight while the snow fell, Larry Williams worked his usual third shift at his job in
Albany, Kentucky, getting off at 7:00 a.m. Friday morning. He returned to his home in Pall
Mall, Tennessee, on Friday to find “[a] good six inches” of snow on the ground. After a
shower and a few hours of sleep, Mr. Williams decided, despite the snow on the ground, to
venture into Jamestown to pay a few bills. He left his home between noon and 1:00 p.m.
After an uneventful stop at his doctor’s office to pay a bill, he drove to the Fentress County
Courthouse to pay his property taxes.

        Arriving at the courthouse, Mr. Williams circled the building looking for a parking
space. He noticed that the parking spaces fronting the east, west, and south sides of the
building, where the sun was hitting the parking surface, were relatively clear of snow.
The parking spaces fronting the north side of the building, which fell within the shadow of
the courthouse, still had ice and snow, but Mr. Williams chose to park there because it was
the only area with an open parking space.

       After parking, Mr. Williams entered the courthouse and paid his property taxes. From
there, Mr. Williams went to the adjoining jail to ask about visiting hours. Although the jail
adjoined the courthouse, it could not be accessed by the public from inside the courthouse, so
to reach the jail, Mr. Williams exited the courthouse, came down a small flight of stairs near
his vehicle into the north parking area and then walked west between a rock wall that
bounded the courthouse grounds and the curb stops in the parking area. Mr. Williams later
described the path he took as having snow and slush deeper than his ankles and almost up to
his knees, so he used the parked cars to steady himself as he walked to the jail.

        Leaving the jail, Mr. Williams chose not retrace his steps to his vehicle. Instead, he
decided to walk out in the parking area, between the parked vehicles and State Highway 52,
which bounded the north side of the courthouse. At about the same time, the county
executive was assisting an elderly woman down the small flight of stairs outside the north
side of the courthouse. As Mr. Williams reached a point in the parking area directly across
from the stairs, the elderly woman spoke to Mr. Williams, who turned his gaze from his feet
to the woman. At that point, Mr. Williams slipped on ice and fell, severely injuring his right
wrist.
                                             2
       Nearly a year later, Mr. Williams filed a Tennessee Governmental Tort Liability Act
(“GTLA”)1 suit in the Circuit Court for Fentress County, Tennessee, against both Fentress
County and the City of Jamestown. After determining that the parking area surrounding the
courthouse up to the rock wall was City property, Mr. Williams dismissed Fentress County,
and the case proceeded to trial against the City only on December 10, 2014.

       At trial, Mr. Williams testified regarding the conditions the day of his fall. He
acknowledged it was “a significant winter storm” and estimated that there were six inches of
snow on the ground when he got to the City. He also acknowledged that, by venturing out,
he was taking a serious risk. When asked if he had to go out that day, Mr. Williams testified
that he did not have to go out but that he preferred to pay his bills when he received them.

       The witnesses who could recall the condition of the courthouse parking areas on that
Friday, January 21, 2011, testified that the parking area had been scraped. The county
executive recalled that the parking area had been scraped prior to his 7:45 a.m. arrival at the
courthouse; he saw balls of snow in the parking area where snow had been plowed aside.
The county executive also recalled that City personnel did more work on the parking areas at
10:00 a.m. The road superintendent testified that the normal procedure would have been to
double salt the courthouse parking areas and that he believed that procedure was followed on
January 21, 2011. The testimony also showed that it would have been difficult to keep salt
treated areas from refreezing. The city recorder logged the air temperature as twenty-four
degrees at 2:00 p.m., approximately thirty minutes prior to Mr. Williams’s fall.

       At the conclusion of the proof, the trial court dismissed the complaint with prejudice.
The court found that the City did not breach its duty of care to Mr. Williams and, even if the
City had breached its duty of care, Mr. Williams was more than fifty percent at fault for his
injuries. The court entered a final order on January 28, 2015.

        1
          The GTLA defines the circumstances in which local governmental entities may be subject to suits for
damages. See Tenn. Code Ann. § 29-20-201(a) (2012); Hawks v. City of Westmoreland, 960 S.W.2d 10, 14
(Tenn. 1997). Two such circumstances are for “injur[ies] caused by a defective, unsafe, or dangerous
condition of any street, alley, sidewalk or highway, owned and controlled by [a] governmental entity” and for
“injur[ies] caused by the dangerous or defective condition of any public building, structure, dam, reservoir or
other public improvement owned and controlled by [a] governmental entity.” Tenn. Code Ann. §§ 29-20-
203(a), -204(a). Although Mr. Williams’s complaint alleges the applicability of both circumstances, we have
previously characterized a government owned and controlled parking lot as a “public improvement.” See Sears
v. Metro. Nashville Airport Auth., No. 01A01-9703-CV-00138, 1999 WL 536341, at *4 (Tenn. Ct. App. July
27, 1999) (“[T]he parking lots at the airport, together with the traffic control devices installed in the parking
lots, amount to streets, sidewalks, and public improvements owned and controlled by the Airport Authority for
the purpose of Tenn. Code Ann. §§ 29-20-203(a), -204(a).”); see also Dickerson v. Rutherford Cty., No.
M2012-01916-COA-R3-CV, 2013 WL 1501783, at *5 (Tenn. Ct. App. Apr. 11, 2013) (citing Tenn. Code
Ann. § 29-20-204 for an injury occurring in a parking lot).

                                                       3
       On appeal, Mr. Williams raises three issues. First, Mr. Williams argues the final order
does not accurately reflect the court’s oral ruling. Second, Mr. Williams argues that the trial
court erred in finding that the City did not breach a duty of care, and third, Mr. Williams
argues that the trial court erred in finding that he was more than fifty percent at fault for his
injuries.

                                         II. ANALYSIS

       In non-jury cases, the trial court’s findings of fact are presumed to be correct unless
the evidence in the record preponderates against them. Tenn. R. App. P. 13(d). Evidence
preponderates against a finding of fact if the evidence “support[s] another finding of fact
with greater convincing effect.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d
291, 296 (Tenn. Ct. App. 2001). We review a trial court’s conclusions of law de novo, with
no presumption of correctness. Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn. 2006).

       As an initial matter, Mr. Williams contends that we should modify our standard of
review because the final order does not accurately reflect the trial court’s findings of fact and
conclusions of law announced on the record at the conclusion of the trial. Without revealing
exactly how the final order varies from the trial court’s oral findings of fact, he suggests that
we should review the findings of fact contained in the final order as if they were conclusions
of law, i.e. de novo with no presumption of correctness. Alternatively, Mr. Williams requests
that we only consider the court’s oral findings of fact and conclusions of law.

        After making oral findings of fact and conclusions of law, the court directed counsel
for the City to prepare an order that “take[s] what I said, put[s] it in paragraph form, and in
an order that’s logical and makes sense, so that the appellate court can review it.” Counsel
for the City submitted its proposed final order, and counsel for Mr. Williams submitted a
competing proposed order. The court ultimately adopted the proposed order prepared by
counsel for the City.

       Although noting its preference for “findings of fact, conclusions of law, opinions, and
orders prepared by trial judges themselves . . . [over] those prepared by counsel,” our
Supreme Court has acknowledged that “[t]here are . . . acceptable reasons for permitting trial
courts to request the preparation of proposed findings of fact, conclusions of law, and
orders.” Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 314, 316 (Tenn. 2014). Appellate
courts generally approve the trial court’s use of a counsel-prepared order as long as two
conditions are satisfied. “First, the findings and conclusions must accurately reflect the
decision of the trial court. Second, the record must not create doubt that the decision
represents the trial court’s own deliberations and decision.” Id. at 316.


                                               4
       Reviewing the final order in this case, we conclude both conditions are satisfied.
Despite Mr. Williams’s claim to the contrary, the findings of fact and conclusions of law
accurately reflect the oral statements and rulings made by the trial court. We also have no
doubt that the decision was the court’s own. As reflected in the final order, the court
explicitly found that the City did not breach its duty of care to Mr. Williams and, even if it
had, Mr. Williams was more than fifty percent at fault.

        We next consider the duty the City owed to Mr. Williams and whether the evidence
preponderates against the trial court’s finding that there was no breach. Local governments
have a duty to exercise reasonable care to protect persons on its property from unreasonable
risks of harm. See Tenn. Code Ann. §§ 29-20-204(a) (2012); Sears v. Metro. Nashville
Airport Auth., No. 01A01-9703-CV-00138, 1999 WL 536341, at *4 (Tenn. Ct. App. July 27,
1999). Subsumed within the duty to exercise reasonable care is “the duty either to remove
dangerous conditions on their premises or to warn persons about dangerous conditions that
the owner knows or should know about.” Sears, 1999 WL 536341, at *4. In the case of
natural accumulations of snow and ice, property owners “are expected to take reasonable
steps to remove snow and ice within a reasonable time after it has formed or accumulated.”
Bowman v. State, 206 S.W.3d 467, 473 (Tenn. Ct. App. 2006). We have previously held that
what is reasonable depends upon, “among other things, (1) the length of time the
accumulation has been present, (2) the amount of the accumulation, (3) whether the
accumulation could be, as a practical matter, removed, (4) the cost of removal, and (5) the
foreseeability of injury.” Id. at 474.

       The snow fall in this case began on the afternoon of Thursday, January 20, 2011, and
continued through the night. At the time Mr. Williams ventured out on the afternoon of
January 21, 2011, six inches of snow were on the ground in the City. The proof showed that
the City had scraped the area where Mr. Williams had parked prior to 7:45 a.m. on January
21 and that City personnel had returned to work on the parking area again at 10:00 a.m. The
road superintendent agreed that the City Road Department put a “high priority” on the
hospital and courthouse and testified that he believed the courthouse parking areas were
double salted. The testimony also showed that it would have been difficult to keep salt
treated areas from refreezing because temperatures on that Friday ranged from fourteen
degrees at 7:00 a.m. to twenty-four degrees just before Mr. Williams’s fall.

       Based on this record, the evidence does not preponderate against the trial court’s
finding that the City did not breach its duty of reasonable care to Mr. Williams.
Mr. Williams argues that the City actually created a dangerous condition by the manner in
which it scraped snow and ice from the parking areas because snow and ice were pushed
between the curb stops and the rock wall bordering the courthouse grounds.2 As a result,

        2
          Mr. Williams’s arguments seemed to be that the snow and slush he encountered between the curb
stops and rock wall were an “unnatural accumulation” of snow and ice. Some jurisdictions recognize liability
                                                     5
Mr. Williams claims that he was forced to walk in the icy parking lot. We disagree. Some
natural accumulation of snow and ice between the curb stops and the rock wall would be
expected in these circumstances and conditions. The City could not have scraped between
the curb stops and rock wall, and given the air temperatures and the fact that the area was in
shadows, the effectiveness of salting would be minimal. As for Mr. Williams being
compelled to venture out in the parking area behind the parked vehicles, Mr. Williams
testified that he was able to walk to the jail between the curb stops and the rock wall, albeit
by steadying himself against parked vehicles.

       Mr. Williams’s last assignment of error is that the trial court erred in finding him more
than fifty percent at fault for his injuries. “[O]nly after the element of duty is established
does the comparative fault of the plaintiff come into play.” Staples v. CBL & Associates,
Inc., 15 S.W.3d 83, 91 (Tenn. 2000). Although the City owed a duty to Mr. Williams,
because the evidence does not preponderate against the trial court’s finding of no breach of
duty by the City, we need not address the issue of Mr. Williams’s fault.

                                            III. CONCLUSION

      Because the City did not breach its duty of care to Mr. Williams, we affirm the
judgment of the trial court dismissing the case with prejudice.


                                                            _________________________________
                                                            W. NEAL MCBRAYER, JUDGE




where a property owner “voluntarily undertakes the removal of snow and ice . . . [and] the removal results in an
unnatural accumulation of snow or ice that causes injury to a plaintiff.” Russell v. Vill. of Lake Villa, 782
N.E.2d 906, 909 (Ill. App. Ct. 2002); see also McDonald v. Koger, 150 Ohio App. 3d 191, 192, 2002-Ohio-
6195 ¶ 11, 779 N.E.2d 1083, 1084. Whether the accumulation of snow and slush between the curb stops and
rock wall was natural or unnatural, the accumulation did not cause Mr. Williams’s fall.


                                                       6
