                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                             December 10, 2001 Session

                     CYNTHIA LONG v. CITY OF MARYVILLE

                   Direct Appeal from the Circuit Court for Blount County
                      No. L-9994    Hon. W. Dale Young, Circuit Judge

                                       FILED FEBRUARY 1, 2002

                                  No. E2001-00908-COA-R3-CV



Upon remand from this Court, the Trial Court entered Judgment for defendant in this slip and fall
case. On appeal, we reverse.


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


HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,
J., and WILLIAM H. INMAN , SR. J., joined.

Kevin W. Shepherd, Maryville, Tennessee, for Appellant.

Nathan D. Rowell, Knoxville, Tennessee, for Appellee.



                                              OPINION


                 In this action for damages for personal injuries resulting from a fall, the Trial Court
initially dismissed plaintiff’s action at the conclusion of plaintiff’s proof, pursuant to Tenn. R. Civ.
P. Rule 41. Plaintiff appealed to this Court, and this Court reversed and remanded to the Trial Court,
stating that the plaintiff would be limited to the proof already offered, but the defendant was entitled
to “present its case”.

                The defendant elected not to put on any proof, and the Trial Court then ruled in the
favor of defendant, holding that plaintiff had failed to prove notice of a defect, unsafe or dangerous
condition, and further that plaintiff failed to prove any negligence, act or omission by any employee
of the City, and did not carry her burden of proof. Plaintiff has again appealed to this Court.
                Judge Goddard, authoring the Opinion in the initial appeal said:

                       In considering the issue before us, we note that causation was one of the
                grounds on which the Trial Court dismissed Ms. Long’s case. The Court stated that
                Ms. Long “did not put on any proof that any employee of the City of Maryville had
                committed a negligent act or omission.” After reviewing the record de novo, we are
                persuaded that, as the record now stands, an inference should be indulged that while
                making repairs, the City failed to repair the light which still had the tape affixed to
                the lamppost and that because the water fountain was operating at freezing or below
                freezing temperatures, ice may have formed on the walking path.

                       We accordingly find that the evidence preponderates against the
                determination of the Trial Court.

                  In responding to a Tenn. R. Civ. P. Rule 41.02(2) motion, the court must impartially
evaluate the evidence in the same manner as though it were making findings of fact at the conclusion
of all the evidence of both parties, determine the facts of the case, apply the law to those facts, and
if the plaintiff’s case has not been made out by a preponderance of the evidence, a judgment may be
rendered against the plaintiff on the merits. See Columbia v. C.F.S. Const. Co., 557 S.W.2d 734
(Tenn. 1977). As already noted, this Court found the evidence preponderated against the Trial
Court’s initial decision.

                 Inexplicably, the defendant offered no evidence upon remand when given the
opportunity, and where there is no material distinction between the evidence submitted on the first
trial and the evidence presented in the second trial, the ruling of the Court of Appeals on the first trial
is the law of the case on the second appeal. City of Chattanooga v. Rogers, 299 S.W.2d 660, 201
Tenn. 403 (Tenn. 1957).

                 The plaintiff fell while walking in defendant’s park when it was “dusty dark”. It was
reasonable for this Court to infer that the fine mist sprayed in sub-freezing temperature could cause
icy conditions on the sidewalk and the defendant, in the exercise of ordinary care, reasonably should
have discovered the hazard. Moreover it had constructive notice of the condition. It is also
reasonable to infer from the orange tag still attached to the burned out light, that the City had actual
notice of the situation, yet failed to correct it. The record does not show that the particular light near
the fountain had ever been repared. Contrary to defendant’s assertion, there is no direct proof that
the light was included in the other repairs completed prior to plaintiff’s fall. A city employee
testified that the department received notice on November 22 that several lights were out. Someone
was sent to verify the location and place a tag around the lamppost. Then the electric department
was notified and sent out to replace the lights. This witness testified in his deposition:

                Q.      But as far as whether this specific light was affected by that, you don’t know,
                        do you?

                A.      No.

                                                   -2-
                The clear inference is, the City had actual notice that the light was out but had not
repaired this particular light. The inference was found by a preponderance of the evidence by this
Court on the first appeal, yet on remand, defendants offered no evidence to rebut these inferences.

                 Since this Court had previously found the evidence preponderated in favor of the
plaintiff, the City had the burden to rebut plaintiff’s case by countervailing proof. Accordingly, we
reverse the Judgment of the Trial Court and remand, for the Trial Court to establish the amount of
damages to which the plaintiff is entitled which will be reduced by the percentage of her fault, if any,
in causing the accident.

               The cost of the appeal is assessed to the City of Maryville.




                                                        _________________________
                                                        HERSCHEL PICKENS FRANKS, J.




                                                  -3-
