             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                              FILED
                                                                  May 29, 1998
DONNA S. OGILVIE           )
                           )                                 Cecil W. Crowson
    Plaintiff/Appellant,   )                                Appellate Court Clerk
                           )                   Appeal No.
                           )                   01-A-01-9709-CV-00466
VS.                        )
                           )                   Davidson Circuit
                           )                   No. 95C-1673
METROPOLITAN GOVERNMENT OF )
NASHVILLE AND DAVIDSON     )
COUNTY, TENNESSEE,         )
                           )
    Defendant/Appellee.    )


       APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

              THE HONORABLE THOMAS W. BROTHERS, JUDGE


JOEL H. MOSELEY
MOSELEY & MOSELEY
Suite 300, One Church Street
101 Church Street
Nashville, Tennessee 37201-1609
       Attorney for Plaintiff/Appellant

JAMES L. MURPHY
Director of Law
Department of Law of the Metropolitan
Government of Nashville and Davidson County

PHILIP D. BALTZ
Metropolitan Attorney
222 Third Avenue North, Suite 501
Nashville, Tennessee 37201
      Attorney for Defendant/Appellee



                           AFFIRMED AND REMANDED



                                          BEN H. CANTRELL, JUDGE

CONCUR:
TODD, P.J., M.S.
BUSSART, W., S.J.


                                 OPINION
               The plaintiff sued the Metropolitan Government of Nashville and

Davidson County, alleging that the dangerous and unsafe condition of a city sidewalk

caused her to fall and sustain personal injuries. After a bench trial, the Circuit Court

of Davidson County found that the sidewalk was not defective, unsafe, or dangerous

and that the plaintiff was more than fifty percent at fault. We affirm.



                                                I.



               On June 26, 1994, the plaintiff, in the company of her husband and son,

walked along the sidewalk on the south side of Union Street in Nashville. At some

point between Fifth and Sixth Avenues, she stumbled over a “lip” a little over one inch

high in the sidewalk. The lip resulted from the failure to build or maintain the sidewalk

flush with the top of a concrete underground chamber, the surface of which formed

part of the sidewalk. Ms. Ogilvie fell and sustained painful personal injuries.



                                                II.



                Because this is an action against the local government, the Tennessee

Governmental Tort Liability Act applies to the claim. After providing (or reiterating) a

general rule of immunity, Tenn. Code Ann. § 29-20-201(a), the Act removes the

immunity of a local government for injuries “caused by a defective, unsafe, or

dangerous condition of any street, alley, sidewalk or highway, owned or controlled by

such governmental entity. Tenn. Code Ann. § 29-20-203(a).1 Subsection (b) requires

as a precondition to liability that the governmental entity have notice, actual or

constructive, of the dangerous condition. The City does not deny that it had notice of

the condition or that the sidewalk was under its ownership and control.




       1
        Governmental immunity is removed for certain other torts by other sections of the Act. See
Tenn. Code Ann. § 29-20-202, 204, and 205.

                                              -2-
              The real question, then, is whether the sidewalk was defective, unsafe,

or dangerous. The trial judge held that it was neither, and relying in part on that

conclusion, he dismissed the claim. The question of what condition of a sidewalk will

make it defective, dangerous, or unsafe has troubled the courts for many years. Our

books contain numerous cases dealing with sidewalk irregularities from great to small.

In City of Memphis v. McCrady, 124 S.W.2d 248 (Tenn. 1938) the court held that a

two and one-half inch “lip” at an expansion joint in the sidewalk, over which the plaintiff

tripped in broad daylight, would not subject the city to liability. In Batts v. City of

Nashville, 123 S.W.2d 1099 (Tenn. App. 1939) the court surveyed a number of cases

that dealt with defects of various sizes and shapes in sidewalks or streets. The

defects ranged from a two and three-eighths inch difference between sections of a

sidewalk, McCormick v. City of Racine, 277 N.W. 646 (1938), to a three inch deep

hole in a sidewalk, Getzoff v. City of New York, 64 N.Y.S. 636 (1900), and in each

case the court held as a matter of law that the condition did not render the area

defective or dangerous.



              In fairness, we should point out that the Tennessee cases all say that

liability does not depend on how high the irregularity is. No bright line can be drawn

on the size and depth of holes in the sidewalk beyond which the city would be liable.

The court in Batts summed up the rule in this way:

                      It would be impossible to derive a rule from the
              numerous cases by which to fix the line of demarcation
              between actionable size and depth of holes in streets and
              sidewalks and nonactionable size and depth. The cases
              all come back to the question of whether or not it could be
              reasonably anticipated, by a reasonably prudent person,
              that a traveler on the sidewalk or highway unexpectedly
              encountering the obstruction or hole, would suffer injury,
              or as some of the cases express it, would probably suffer
              injury.

123 S.W.2d at 1104.



               In City of Memphis v. McCrady, 124 S.W.2d 248, 249 (Tenn. 1938) the

court put it this way:

                                           -3-
             The municipality cannot be held as an insurer, nor can it
             be charged with the duty to correct slight defects in
             sidewalks resulting from inequality in the expansion joints,
             produced by natural causes, where the inequality or
             unevenness does not make a dangerous obstruction
             calculated to produce injury to persons exercising
             reasonable care. And so, where the evidence is
             conflicting or the facts such as to authorize different
             inferences as to whether the defect is a dangerous
             obstruction calculated to cause injury, the case must be
             submitted to the jury, but, where the defect or obstruction
             is such that reasonable men would not differ in the
             conclusion that the obstruction or defect was not
             dangerous to travel in the ordinary modes by persons
             exercising due care, a verdict should be directed.



             The courts have consistently held that whether a particular site is

defective, unsafe, or dangerous, thereby removing governmental immunity, is a

question of fact. Coln v. City of Savannah, ____ S.W. ____ (Tenn. 1998); Helton v.

Knox County, 922 S.W.2d 877 (Tenn. 1996). And the factual determination involves

the analysis specified in Batts above.



             The trial judge found that the sidewalk where the plaintiff fell was not

defective, unsafe, or dangerous. That finding comes to this court with a presumption

of correctness. Rule 13(d), Tenn. R. Civ. Proc. We cannot find that the evidence

preponderates against it.




                                         III.



             In what may or may not be a trend, the more recent cases have

assumed that more minor deviations in the surface of the sidewalk are dangerous and

have focused on how comparative fault principles affect the duties of the respective




                                         -4-
parties. See Coln v. City of Savannah, ____ S.W. ____ (Tenn. 1998);2 Broyles v. City

of Knoxville, No. 03A01-9505-CV-00166 (filed at Knoxville, Aug. 30, 1995). So, an

argument could be made that the older cases we have cited have been nullified by the

adoption of comparative fault.             The Supreme Court decision in Coln v. City of

Savannah based its decision entirely on an analysis of the city’s duty (to do

something) to protect pedestrians who might encounter a deviation of several inches

in the sidewalk. One could assume that the courts should go through the duty

analysis in each case, and if a duty is found, the premises are automatically

dangerous for the purpose of removing the city’s immunity.



                 Even if we did that analysis in this case, however, the plaintiff would still

have to overcome the trial court’s additional finding that the plaintiff’s own negligence

was more than fifty percent of the cause of her injuries. See McIntyre v. Balentine,

833 S.W.2d 52 (Tenn. 1992). That finding is also presumed to be correct under Rule

13(d), Tenn. R. Civ. Proc.



                 The factors to be considered in assessing the fault of each party are set

out in Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994). They include but are not

limited to

                 (1)    the relative closeness of the causal relationship
                 between the conduct of the defendant and the injury to
                 the plaintiff;

                 (2)     the reasonableness of the party’s conduct in
                 confronting a risk, such as whether the party knew of the
                 risk, or would have known of it;

                 (3)     the extent to which the defendant failed to
                 reasonably utilize an existing opportunity to avoid the
                 injury to the plaintiff;

                 (4)    the existence of a sudden emergency requiring a
                 hasty decision;



        2
         The deviation in elevation from the brick pave rs to th e side walk in Coln v. City of Savannah was
three-eighths of an inch when the brick pavers w ere installed. By the time of the acciden t, however, the
deviation was several inches greater.

                                                   -5-
              (5)     the significance of what the party was attempting
              to accomplish by the conduct, such as to save another’s
              life; and

              (6)    the party’s particular capacities, such as age,
              maturity, training, education, and so forth.

891 S.W.2d at 592.



              When we consider these factors in light of the conditions under which

the plaintiff fell -- in broad daylight (although overcast), a Sunday afternoon when the

sidewalk was not crowded and the plaintiff’s attention was not distracted, the fact that

the defect was open and obvious -- we cannot find that the evidence preponderates

against the trial judge’s finding. We arrive at this conclusion despite the proof that the

hazard could have been easily remedied.



              The judgment of the court below is affirmed and the cause is remanded

to the Circuit Court of Davidson County for any further proceedings that might become

necessary. Tax the costs on appeal to the appellant.




                                                   ____________________________
                                                   BEN H. CANTRELL, JUDGE
CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION


__________________________________
WALTER W. BUSSART, SPECIAL JUDGE
