                                                                                             10/09/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   July 18, 2019 Session

        DENITA MCMAHAN V. CITY OF CLEVELAND, TENNESSEE

                  Appeal from the Circuit Court for Bradley County
                    No. V-14-096        J. Michael Sharp, Judge


                              No. E2018-01719-COA-R3-CV


In this action brought under the Governmental Tort Liability Act, the plaintiff sought
damages from the City of Cleveland for injuries received when she fell after tripping on a
raised, cracked and uneven section of a public sidewalk. In pertinent part, the plaintiff
alleged that the city’s immunity under the Act should be removed based on constructive
notice because the city created the dangerous condition by planting trees along the
sidewalk in the 1990s and roots from those trees caused the unsafe condition.
Alternatively, the plaintiff asserted that immunity should be removed under the common
occurrence theory of constructive notice because the tree roots caused numerous and
similar defects in other sections of the city’s sidewalks. Following a bench trial, the trial
court found that the city did not have actual or constructive notice of the alleged defect in
the sidewalk and held that the city was immune from liability under Tennessee Code
Annotated § 29-20-203(b). This appeal followed. Because the evidence does not
preponderate against the trial judge’s finding that the plaintiff failed to prove that the city
had actual or constructive notice of the alleged defect in the sidewalk where she tripped
and fell, we hold that immunity under the GTLA was not removed and affirm the
judgment of the trial court.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which D.
MICHAEL SWINEY, C.J. and THOMAS R. FRIERSON II, J., joined.

Franklin H. Chancey, Cleveland, Tennessee, for the appellant, Denita McMahan.

Ronald D. Wells, Chattanooga, Tennessee, for the appellee, City of Cleveland.
                                                 OPINION

       On February 21, 2013, Denita McMahan (“Plaintiff”) tripped and fell while
walking on the public sidewalk as she was leaving Octavia’s Hair Salon (the “Salon”),1 in
Cleveland, Tennessee. Plaintiff had been visiting the Salon at this location about once
every two weeks for approximately one year. It was a clear day, and Plaintiff was
wearing tennis shoes when she tripped on the sidewalk and fell onto her right side.
Believing that she only sustained contusions on the right side of her body, Plaintiff went
home immediately after the fall, but she went to the emergency room that night due to
pain and discomfort. A few days later, Plaintiff had a CT scan that showed two fractured
ribs.

      On February 14, 2014, Plaintiff commenced this action against the City of
Cleveland (the “City”). In an amended complaint, Plaintiff alleged her injuries were
caused by the negligence of the City in failing “to maintain the Defendant’s property in a
safe condition or by the Defendant’s failure to warn Plaintiff of the existence of a
hazardous condition on or about February 21, 2013.”

       In its answer, the City admitted that Plaintiff reported the incident but denied that
the incident occurred for the reasons alleged by Plaintiff. The City denied that it failed to
properly maintain the sidewalk and denied breaching any duty owed. The City also
claimed immunity under the Tennessee Governmental Tort Liability Act (the “GTLA”),
Tenn. Code Ann. § 29-20-203, asserting that it had no actual or constructive notice of the
alleged defect in the sidewalk.

        The case was tried in a bench trial on June 7, 2018. Three witnesses testified at
trial: Plaintiff; Lamotta McMahan, Plaintiff’s husband; and Tommy Myers, the Director
of Public Works for the City of Cleveland.2 Plaintiff testified that although she had been
to the Salon many times in the past, she never noticed the sidewalk being raised, and she
had not tripped, fallen, or had any problem with the sidewalk during her previous visits to
the Salon. She described the section that caused her to fall as “significantly raised” from
other sections with numerous cracks which she could have seen if she had been looking
down. She also stated that this section of the sidewalk, and all sidewalks in the downtown
area, were lined by mature trees.




1
    Octavia’s Hair Salon is located about 150 feet from the entrance of City Hall.
2
  Plaintiff also introduced into evidence the deposition of her primary care provider, nurse practitioner
Jesus Melendez.



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        Plaintiff testified that the fall caused her to sustain severe injuries, including pain
and suffering, physical and emotional distress, loss of enjoyment of life, as well as the
loss of her job. Plaintiff testified that she had worked on the assembly line for Whirlpool
for 26 years prior to this incident. She said she was out of work for one week, went back
for three days after which she took family medical leave for almost two years because she
was unable to perform her job on the assembly line at Whirlpool. She never went back.
Her husband corroborated her testimony in all respects of which he had personal
knowledge.

       Tommy Myers, the Director of Public Works for the City, testified that he
supervises the people responsible for working on the sidewalks. He testified that
numerous trees were planted throughout the City in the 1990s, and the tree roots have
caused some areas of the sidewalks to be raised; however, there had been no previous
complaints regarding the sidewalk where Plaintiff fell. He further explained that his staff
makes “periodic sweeps” of the downtown area, checking sidewalks for any problems. In
particular, he testified that his staff conducted sweeps/inspections before major
downtown events in the three years prior to Plaintiff’s fall. Specifically, he stated these
sweeps/inspections included the area where Plaintiff fell, and that section of the sidewalk
was never identified as a problem area.

       The trial court entered an order on August 29, 2018, finding in pertinent part:

       Tommy Myers is the Director of Public Works for the City of Cleveland.
       Mr. Myers testified that he is the individual who employs people who are
       responsible to work on the sidewalks. He is the individual who oversees the
       City of Cleveland’s sidewalks. Mr. Myers testified that due to the fact that
       numerous trees were planted in the 1990’s [sic], the tree roots have proven
       to be problematic in that the tree roots have caused problems with the
       City’s sidewalks, causing some areas of the sidewalks to be raised. Mr.
       Myers testified that when the City is notified that they make every effort to
       take care of any known problems as soon as possible. He testified that he
       has his staff make “periodic sweeps” of the downtown area, checking the
       sidewalks for any problems that might cause an individual to fall. Mr.
       Myers testified that after the injury to Mrs. McMahan, the City repaired the
       sidewalk in front of the hair salon where Mrs. McMahan fell. Mr. Myers
       testified that he believes the sidewalk was raised more than one-half inch
       where Mrs. McMahan fell, and that the [rise] in the sidewalk area was, in
       his opinion, a potential hazard. However, Mr. Myers testified that there was
       never any complaints of any kind by anyone pertaining to the sidewalk
       located on First Street at or near the hair salon where Mrs. McMahan fell.
       Mr. Myers testified that neither he nor anyone on his staff had ever been
       put on notice of any problems with this area of the sidewalk. Mr. Myers
       testified that his staff made “regular general sweeps” of all the City

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        sidewalk areas which includes the City sidewalk in front of the hair salon
        where Mrs. McMahan was injured. Mr. Myers testified that the City always
        addresses the problems as they are brought to their attention and/or as they
        become aware that there is or might be a problem.

       Based on the above findings and other evidence in the record, the trial court ruled
that the GTLA governed the case and held that even if Mr. Myers’ testimony established
the condition on the sidewalk was considered a defective, unsafe or dangerous condition,
Plaintiff failed to show the City had either actual or constructive notice of any defective,
unsafe or dangerous condition. Thus, Plaintiff failed to establish the requisite elements to
remove immunity from Defendant pursuant to Tenn. Code Ann. § 29-20-203. The court
also ruled that she had not proven her medical expenses were reasonable and necessary
by expert proof as required by Tennessee law, and she had not proven that she is unable
to work, or that she lacks the ability to continue to be employed and to enjoy life. This
appeal followed.

                                                  ISSUE

       Plaintiff raises two issues, but we have determined that the dispositive issue is
whether the evidence preponderates against the trial court’s finding that the City did not
have actual or constructive notice of a defect in the sidewalk where Plaintiff tripped and
fell.3

                                       STANDARD OF REVIEW

       Because this is an appeal from a decision made by the trial court following a
bench trial, the standard in Tenn. R. App. P. 13(d) governs our review. This rule contains
different standards of review for reviewing a trial court’s decisions regarding factual
questions and legal questions. Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194
S.W.3d 415, 424 (Tenn. Ct. App. 2005).

        We review a trial court’s findings of fact following a bench trial de novo with a
presumption of correctness unless the preponderance of the evidence is otherwise. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review
the trial court’s conclusions of law de novo with no presumption of correctness. Hughes
v. Metro. Gov’t of Nashville & Davidson Cty., 340 S.W.3d 352, 360 (Tenn. 2011).

        3
            Plaintiff also contends the trial court erred in excluding the testimony of Plaintiff’s nurse
practitioner after finding the testimony failed to prove Plaintiff’s medical treatment for injuries sustained
from her fall was both reasonable and necessary. Because we have held the City is immune from liability,
this issue is moot.



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       For the evidence to preponderate against a trial court’s finding of fact, it must
support another finding of fact with greater convincing effect. See Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000) (citing Austin v. City of
Memphis, 684 S.W.2d 624, 634 (Tenn. Ct. App. 1984)); Realty Shop, Inc. v. R.R.
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). We will also give
great weight to a trial court’s factual findings that rest on determinations of credibility
and weight of oral testimony. See Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.
1997); Woodward v. Woodward, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007) (citing
Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)); B &
G Const., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn. Ct. App. 2000) (citing Quarles v.
Shoemaker, 978 S.W.2d 551, 552–53 (Tenn. Ct. App. 1998)).

                                        ANALYSIS

       Governmental entities are immune from suit, except when immunity has been
removed by statute. See Tenn. Code Ann. § 29-20-201. In cases brought pursuant to the
GTLA, “[b]efore proceeding in an action against a governmental entity, the threshold
issue of waiver of governmental immunity must be addressed.” Brown v. Hamilton Cty.,
126 S.W.3d 43, 46 (Tenn. Ct. App. 2003). Relevant to this case, Tenn. Code Ann. § 29-
20-203 provides as follows:

      (a) Immunity from suit of a governmental entity is removed for any injury
      caused by a defective, unsafe, or dangerous condition of any street, alley,
      sidewalk or highway, owned and controlled by such governmental entity.
      “Street” or “highway” includes traffic control devices thereon.

      (b) This section shall not apply unless constructive and/or actual notice to
      the governmental entity of such condition be alleged and proved in addition
      to the procedural notice required by § 29-20-302 [repealed].

       If the contention is one of actual notice, the operative questions are what did the
City know and when did the City know it. See Alexander v. City of Murfreesboro, No.
M2010-00367-COA-R3-CV, 2011 WL 882441, at *3 (Tenn. Ct. App. Mar. 14, 2011)
(“As to notice, the appropriate inquiry is what did the City know, or what should it have
known, about the condition of the South Rutherford Boulevard on October 12, 2004, the
date of the Alexander accident.”). If the contention is one of constructive notice, the
operative questions are what should the City have known and when should the City have
known it. See id.

        Actual notice has been described as “knowledge of facts and circumstances
sufficiently pertinent in character to enable reasonably cautious and prudent persons to
investigate and ascertain as to the ultimate facts.” Kirby v. Macon Cty., 892 S.W.2d 403,
                                           -5-
409 (Tenn. 1994) (quoting Texas Co. v. Aycock, 227 S.W.2d 41, 46 (Tenn. 1950)). In
contrast, constructive notice is described as “information or knowledge of a fact imputed
by law to a person . . . because he could have discovered the fact by proper diligence, and
his situation was such as to cast upon him the duty of inquiring into it.” Id. (quoting
Black’s Law Dictionary, 1062 (6th ed. 1990)).

        “A plaintiff can establish constructive notice one of three ways.” Merrell v. City of
Memphis, No. W2013-00948-COA-R3CV, 2014 WL 173411, at *5 (Tenn. Ct. App. Jan.
16, 2014). Two of the methods of proving constructive notice are at issue here. One, “a
plaintiff may demonstrate that the owner or operator of the premises caused or created the
condition.” Id. (citing Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989)). The
other means is “by proving that ‘a pattern of conduct, recurring incident, or general
continuing condition’ caused the dangerous condition,” which is known as the “common
occurrence” theory. Id. (citing Blair v. W. Town Mall, 130 S.W.3d 761, 765–66 (Tenn.
2004)).

       With regard to the first means of proving constructive notice, Plaintiff contends
the City had notice because the roots of the trees it planted along the sidewalks in the
1990s caused some of the sidewalks in the downtown area to be raised or cracked and
uneven. Stated another way, Plaintiff asserts that the act of planting the trees combined
with the location of the hazardous condition is enough to impute notice and remove
immunity. The fallacy with this contention is that Plaintiff produced no evidence that the
raised or cracked and uneven defect in the sidewalk where she tripped and fell was
caused by the growth of a tree root.

       When a court considers a GTLA claim arising from an alleged dangerous or
defective condition, we are required to determine whether the governmental entity had
notice of the specific defective or dangerous condition alleged to have caused the injury.
See Fowler v. City of Memphis, 514 S.W.3d 732, 738 (Tenn. Ct. App. 2016).

       As we explained in Fowler v. City of Memphis in more detail:

       When considering [the plaintiff’s] claim through the lens of a dangerous or
       defective condition under Tennessee Code Annotated Sections 29-20-203
       and -204, it is clear that [the defendant] is entitled to summary judgment.
       As an initial matter, we note that the GTLA “requires notice of the actual
       defective or dangerous condition alleged to have caused the loss.”
       Champlin v. Metro. Gov’t Of Nashville, No. M2007-02158-COA-R3-CV,
       2009 WL 1065937, at *5 (Tenn. Ct. App. Apr. 20, 2009). As such, for this
       claim we consider only the notice given to [the defendant] regarding the
       dangerous condition of the particular water meter at issue. See Kirby v.
       Macon Cty., 892 S.W.2d 403, 410 (Tenn. 1994) (considering only the
       notice to the county regarding the “particular bridge” at issue); Mosley v.

                                            -6-
      McCanless, 207 S.W.3d 247, 253 (Tenn. Ct. App. 2006) (framing the issue
      as “[w]hether a particular site is defective, unsafe, or dangerous for
      purposes of waiving governmental immunity”) (emphasis added) (quoting
      Helton v. Knox County, TN, 922 S.W.2d 877, 882 (Tenn. 1996) (affirming
      dismissal of action because bridge was not “defective, unsafe, or dangerous
      condition,” rather than on the issue of notice)); Champlin, 2009 WL
      1065937, at *5 (holding that a prior sidewalk inventory: (1) noting that
      many sidewalks did not comply with federal law did not constitute
      constructive notice that any sidewalk was dangerous or defective; and (2)
      noting cracks in the particular sidewalk at issue did “not provide notice of a
      dangerous, defective or unsafe condition”); Denton v. Hahn, No. M2003-
      00342-COA-R3-CV, 2004 WL 2083711, at *12 (Tenn. Ct. App. Sept. 16,
      2004) (holding that a home owners association had no actual or
      constructive notice of a dangerous condition allegedly caused by settling on
      a particular piece of property, despite general knowledge that settling had
      occurred in buildings throughout the complex); Smith v. Castner-Knott Dry
      Goods Co., No. 01A01-9512-CV-00554, 1997 WL 203605, at *2 (Tenn.
      Ct. App. Apr. 25, 1997) (“[T]he store personnel were not on constructive
      notice of the condition of these tiles even though they were aware that other
      types of mirrored tiles had become dislodged in other locations . . . .”).

Id. at 738–39. Therefore, we consider only whether the City had actual or constructive
notice of a danger or defect in the particular section of the sidewalk where Plaintiff
tripped and fell, as distinguished from the City’s general knowledge that other areas of
the sidewalks owned and maintained by the City were raised and uneven. See id. Having
reviewed the record, there is no evidence that the alleged defect that caused Plaintiff to
trip and fall was caused by the growth of a tree root. Therefore, the mere fact that the
growth of tree roots caused defects in sidewalks in other areas of town fails to prove the
City had constructive notice of a defect where Plaintiff tripped and fell.

       Plaintiff also contends the City had constructive notice of the defect where she
tripped and fell because the defective condition occurs often enough throughout the City
that the City was put on constructive notice of its existence. “[T]o find constructive
notice under the common occurrence theory, the plaintiff must show that the dangerous
condition occurred in ‘the same approximate location and in such a frequent manner, that
the happening of the condition was foreseeable by the defendants.’” Fowler, 514 S.W.3d
at 740 (quoting Merrell, 2014 WL 173411, at *7).

       The common occurrence theory was first recognized in Tennessee by our Supreme
Court in Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004). As explained in Blair,
the Court reasoned that a property owner is on constructive notice of a dangerous
condition when the condition occurs regularly, placing a duty on the property owner to
take reasonable steps to fix the “commonly occurring dangerous condition.” Id. at 766.

                                          -7-
Courts applying the common occurrence theory look for evidence concerning whether the
dangerous condition previously occurred at the same place or near where the plaintiff was
injured. See, e.g., Tinsley v. Wal-Mart Stores, Inc., 155 F. App’x 196, 198 (6th Cir. 2005)
(affirming the grant of summary judgment to defendant because plaintiff presented no
evidence that spills occurred regularly where he fell and rejecting plaintiff’s argument
that the court “should consider the entire floor of [the store] as the relevant location for
the purposes of [a constructive notice] analysis”); Martin v. Wal-Mart Stores, Inc., 159 F.
App’x 626, 629–30 (6th Cir. 2005) (affirming the grant of summary judgment to
defendant store and noting that “[a] history of leaks and spills in other departments could
not have put [the store] on notice of water accumulating in the health and beauty aids
department”); Ferguson v. Wal-Mart Stores E., L.P., No 2:10-CV-245, 2011 WL
3739157, at *5 (E.D. Tenn. Aug. 24, 2011) (denying summary judgment for defendant
based on evidence of the recurring condition of slippery floors during inclement weather
in the aisle of the store where plaintiff fell and evidence of the leaky roof over the aisle
where plaintiff fell).

        The Director of Public Works for the City testified that he assigned employees to
conduct periodic sweeps of the downtown area to identify any hazards, such as the one-
half inch rise in the sidewalk where Plaintiff tripped and fell. He further stated that if any
hazard or defect was noted, it was promptly repaired. He also testified that no one had
identified or observed a potential hazard in the sidewalk where Plaintiff tripped and fell
during any of the sweeps, and there had been no complaints by anyone of any kind
pertaining to the section of sidewalk where Plaintiff tripped and fell. Significantly,
Plaintiff presented no evidence to rebut the Director’s testimony. Moreover, she
introduced no evidence to establish that the dangerous condition had commonly occurred
at the same place or near where she tripped and fell. See Tinsley, 155 F. App’x at 198; see
also Martin, 159 F. App’x at 629–30.

        The trial court made the specific finding of fact that Plaintiff failed to meet her
burden of proof to show that the City had actual notice or constructive notice of the
alleged defect. We review a trial court’s finding of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Having
reviewed the record, we find the evidence does not preponderate against this finding.
Additionally, we find the evidence in this record is insufficient to establish that the
dangerous condition previously occurred at the same place or near where Plaintiff was
injured. See Tinsley, 155 F. App’x at 198; see also Martin, 159 F. App’x at 629–30.
Therefore, the trial court correctly determined that the City is immune from liability
because Plaintiff failed to show that it had either actual or constructive notice of a defect
in the sidewalk where Plaintiff tripped and fell.




                                            -8-
                                    IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant/plaintiff, Denita McMahan.


                                                 ________________________________
                                                 FRANK G. CLEMENT JR., P.J., M.S.




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