                   IN THE COURT OF APPEALS OF TENNESSEE

                                 EASTERN SECTION

                                                                FILED
                                                                   July 24, 1997
HUEY A. HOWELL,                           )      LOUDON CHANCERY
                                                           Cecil Crowson, Jr.
                                          )                     Appellate C ourt Clerk
       Plaintiff/Appellant                )
                                          )
v.                                        )      NO. 03A01-9704-CH-00127
                                          )
CITY OF LENOIR CITY, TN, ET AL,           )      HON. FRANK V. WILLIAMS, III
                                          )
       Defendants/Appellees               )      REVERSED in part;
                                          )      AFFIRMED in part, and
                                          )      REMANDED



Wayne A. Ritchie, II, Knoxville, for Appellant

Pamela L. Reeves, Knoxville, for Appellees



                                     OPINION


                                                 INMAN, Senior Judge


       The plaintiff was injured when a large, long-dead tree fell from an

embankment onto the top of his automobile as he was driving on First Avenue [Rock

Springs Road] in Lenoir City, Tennessee.

       In his twice-amended complaint filed in the Circuit Court the plaintiff seeks to

recover damages for his injuries. He alleged that the tree was situated on property

owned by the defendant Lenoir City which had actual or constructive notice of its

dangerous condition or the danger it posed to the public, and therefore enjoyed no

immunity pursuant to T. C. A. § 29-20-203(b). Alternately, the plaintiff alleged that

the defendant Lenoir City Company owned the land on which the tree was situated;

still alternatively, the plaintiff alleged that the defendant Martha Corlew owned said

land, and that the defendants jointly and severally had actual or constructive notice

of the dangerous condition of the tree and negligently failed to remove it.
       The Lenoir City Company filed its answer in course, and denied ownership of

the property on which the tree was situated. The answer was followed shortly by a

motion for summary judgment supported by the affidavit of Phyllis V. Edwards,

Secretary of Lenoir City Company, Inc., who testified that:

       “ . . . it appears that the residence of the defendant Martha Corlew is
       located on part of the acreage of Lenoir City Company, Inc. sold to J. L.
       Boggs on July 1, 1907 . . . I can find no records indicating that the
       property described in the complaint is owned by the Lenoir City Company,
       Inc.”

       The defendant Lenoir City filed no answer so far as the record reveals. It filed

a motion for summary judgment alleging (1) that the property upon which the tree

was located is not the property of the City; (2) that said property was not maintained

or used by the City, and for these reasons the “City had no authority to enter onto

this land and cut or trim this tree and further had no notice either actual or

constructive of the tree.” This motion was supported by the affidavit of Terry Vann,

City Attorney, who testified that he had reviewed the public record and “that there

has never been any dedication of city streets or public rights of way to Lenoir City,

Tennessee. There are no rights of way recognized in the Registrar [sic] of Deeds

Office.” He further testified that the records do not reflect that the property adjacent

to Rock Springs Road “belongs to Lenoir City,” or “that Lenoir City has any right of

way adjacent to the street.” The motion was supported further by the affidavit of

John R. Johnson, head of the Lenoir City Street Department, who testified that the

City “does not have any right of way over the portion of the embankment where this

tree stood,” and that “we did not trim or mow that portion of the embankment” and

that his Department “has no record of receiving any notice of any problems with the

tree in question.”

       The defendant Martha Corlew filed no answer so far as the record reveals but

filed a motion for summary judgment, supported by her affidavit that she did not own

the land on which the tree stood, and further supported by the affidavit of a surveyor,

David B. Gibson, that he made a survey of Corlew’s property and that the fallen tree

was not located thereon, but appeared to have been “located on property owned by

Lenoir City.”



                                            2
The plaintiff filed a motion for partial summary judgment alleging that

                “the land upon which the subject tree is located is owned by
                the City of Lenoir City, Tennessee.”

         This motion was supported, on the issue of liability, by the affidavit of David B.

Gibson, heretofore referenced. The plaintiff thereafter submitted the affidavit of

Doyle Arp, property assessor of Loudon County, who testified that “no taxes have

been assessed or solicited to be paid for said property,” referring to the strip of land

between the Corlew property and the paved portion of First Avenue on which the tree

was located. The affidavit of Don Lane, former Mayor of Lenoir City, was also

submitted. He testified that he was familiar with the subject property, and that

         “prior to and at the time of subject accident the City was in the habit of
         waiting until tree limbs, debris, etc. had fallen and needed to be removed
         from said property before the City would take any action . . . the City did
         not take any preventive action to address the problem of decaying trees
         on the embankment . . . “

         By agreed order, the case was transferred to the Chancery Court “for a ruling

upon the issue of ownership of the real estate,” if the parties could not otherwise

agree.

         They did not agree, and the Circuit Court thereupon entered an Order of

Transfer and Bifurcation, which provided “. . . the above styled matter is hereby

bifurcated, with the Circuit Court retaining jurisdiction over the tort aspects of the

cause and with the boundary line and ownership issues to be determined by the

Loudon County Chancery Court . . . “

         The case was heard December 4, 1995 in the Chancery Court on the various

motions for summary judgment. A judgment was rendered dismissing the complaint

as to all defendants. Whereupon, the plaintiff filed a RULE 59.04 motion to alter or

amend the judgment dismissing Lenoir City because a genuine issue of material fact

existed as to the liability of the City pursuant to the Government Tort Liability Act,

T. C. A. § 29-20-101 et seq., and that “the judgment be amended to apply only to the

defendants Martha Corlew and Lenoir City Company.”




                                             3
       The RULE 59 motion was heard November 22, 1996. The Chancellor filed a

comprehensive Opinion to “revisit the issues and clarify the earlier ruling.” The

plaintiff apparently attempted to revitalize his theory that Martha Corlew owned the

land between her residence lot and First Avenue,1 which triggered a title analysis of

the Corlew property. The Chancellor concluded that there was no evidence of

dedication of the disputed land to the City,2 nor evidence of control, and that the land

on which the tree stood continues to be titled in J. L. Boggs or his heirs, holding

       “mere dedication by the Lenoir City Company or Boggs of the land for use
       as a public road does not relieve Boggs of responsibility for the
       undeveloped and unaccepted portion of First Avenue, even though the
       City, by reason of the dedication, has the option of eventually accepting
       the entire 60-foot easement.”

       The RULE 59 motion was denied, and the case was dismissed as to all

defendants.

       The plaintiff appeals and presents for review the propriety of the dismissal of

the action against all three (3) defendants.

       Since the plaintiff alleged in his motion for partial summary judgment that the

tree stood on land owned by Lenoir City, and in legal effect therefor conceded that

Martha Corlew and the Lenoir City Company were properly dismissed, we will

consider only the propriety of the dismissal of Lenoir City. Our review is de novo on

the record, with no presumption of correctness since the issue is one of law.

Johnson v. EMPE, Inc., 837 S.W.2d 62 (Tenn. Ct. App. 1992).

       At the outset, we do not consider the issue of the fee ownership of the subject

land on which the tree stood to be necessarily determinative of the liability of Lenoir

City. It is not disputed that the tree was but ten feet from the edge of the pavement

of First Avenue. Evidence was presented that the width of the right-of-way of First

Avenue is 60 feet, which places the tree well within the City’s right of way. This fact




       1
       Somewhat mystifying since the plaintiff, in his motion for partial summary
judgment, alleged that Lenoir City owned this land; moreover, the plaintiff, in his
RULE 59 motion, asked the Court to limit the dismissal of his complaint to Corlew and
Lenoir City Company.
       2
       According to the City attorney, no street or right of way in Lenoir City had
ever been dedicated . . . , a point not crucial to a resolution of this case.

                                           4
appears not to have been disputed,3 and substantially negates the issue of whether

the land on which the tree stood had ever formally been dedicated to the public.

Moreover, the issue of whether Lenoir City could be held liable in tort for failure to

correct a dangerous condition was not within the province of the Chancery Court.

         The provisions of the Government Tort Liability Act, T. C. A. § 29-20-101 et

seq., control this case. The Act grants immunity to governmental entities with

exceptions, one of which is specified in T. C. A. § 29-20-203. This statute provides

that immunity is removed for any injury caused by a defective, unsafe, or dangerous

condition of any street owned or controlled by the governmental entity. The removal

of immunity in this limited context creates a duty of reasonable care on the part of

municipalities to keep the streets safe. See, Kessell v. Ashe, 888 S.W.2d 430

(Tenn. 1994). Under this record, since the City has an easement for street purposes

which encompasses the area where the tree stood, the city enjoys no immunity from

liability.

         Finally, it must be observed that this case was transferred to the Chancery

Court - more or less by agreement - for the purpose of “ruling upon the issue of

ownership of the real estate” [first order] and thereafter bifurcated [second order] with

the “boundary line and ownership issues to be determined by the Chancery Court.”

According to the record, as we have twice noted, the plaintiff abandoned his claim

against Corlew and Lenoir City Company, thereby obviating all issues save the

liability of Lenoir City under the Government Tort Liability Act, jurisdiction of which

was retained by the Circuit Court.

         As to Lenoir City, the judgment is reversed and the case is remanded to the

Chancery Court for transfer to the Circuit Court. As to Martha Corlew and Lenoir City

Company, the judgment of dismissal is affirmed.

         Costs are assessed to the plaintiff and Lenoir City equally.




                                              _____________________________
                                              William H. Inman, Senior Judge


         3
             Except for the affidavit of Johnson wherein he stated a legal conclusion.

                                               5
CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Charles D. Susano, Jr., Judge




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