                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE

              BARBARA WHITEAKER v. CITY OF COOKEVILLE

                   Direct Appeal from the Circuit Court for Putnam County
                           No. NJ--6245    John A. Turnbull, Judge



                    No. M1999-00732-COA-R3-CV - Decided June 29, 2000


The Circuit Court of Putnam County dismissed the plaintiff’s slip and fall action after finding that
a sidewalk maintained by the City of Cookeville was not defective, and that in any case, the plaintiff
was sixty-five percent at fault. The plaintiff urges us to find that the evidence preponderates against
these findings. We reject the plaintiff’s contention and affirm the trial court.

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

CANTRELL , P.J., M.S., delivered the opinion of the court, in which KOCH and CAIN , JJ joined.

Chantal M. Eldridge, Cookeville, Tennessee, for the appellant, Barbara Whiteaker.

Daniel H. Rader III, Cookeville, Tennessee, for the appellee, City of Cookeville.


                                  MEMORANDUM OPINION1


         The plaintiff was entering the Cookeville City Hall to pay her water bill when she tripped and
fell on the sidewalk. She testified that the sidewalk had a “roll,” or a “rise” between two different
sections. It is apparent from the photographs that there is a joint in the sidewalk that she had to step
over, and there is apparently a small difference in elevation between the two sections separated by
the joint.



       1
        Rule 10 of the Rules of the Court of Appeals reads as follows:
               The 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       not be published, and shall not be cited or relied on for any reason in any unrelated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.
       Although it is difficult to tell from the plaintiff’s testimony exactly what tripped her, it
appears that the “roll” she refers to is a bevel that bridges the gap between the two sections of the
sidewalk. She apparently stubbed her toe on the beveled edge and fell.

        After a full hearing, including a view of the site by the trial judge,2 the judge held that the
condition of the sidewalk was not “dangerous or defective,” see Tenn. Code Ann. § 29-20-203, and
that, even if it was, the plaintiff was more than fifty percent at fault.

        We concur in the trial judge’s findings and conclusions. Even if the slight variation in the
elevation between the two sections of the sidewalk could be considered a danger to the public, the
plaintiff testified that she was looking right at the joint and had stepped over it with her left foot.
She saw the roughness in the concrete, but she tripped on it anyway. The evidence does not
preponderate against the trial judge’s finding that the plaintiff was at least sixty-five percent at fault.

        The judgment of the trial court is affirmed, and the cause is remanded to the Circuit Court
for Putnam County for any further proceedings necessary. Tax the costs on appeal to the appellant,
Barbara Whiteaker.




        2
        When the trial judge views the scene of an accident and there is no record of what he/she
saw, the appellant runs the risk of having the appellate court hold that the transcript cannot be
considered because it does not contain all the evidence. See Hutchinson v. Pyburn, 567 S.W.2d 762
(Tenn. Ct. App. 1977); Johnson v. Johnson, 206 S.W.2d 400 (Tenn. 1947).

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