                     IN THE COURT OF APPEALS
                           AT KNOXVILLE
                                                          FILED
                                                          March 9, 2000

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk



                                     E1999-00024-COA-R3-CV
CYNTHIA Y. LONG,                 )   BLOUNT COUNTY
                                 )   03A01-9906-CV-00206
     Plaintiff-Appellant,        )
                                 )
                                 )
     v.                          )   HON. W. DALE YOUNG
                                 )   JUDGE
                                 )
CITY OF MARYVILLE,               )
                                 )
     Defendant-Appellee.         )   REVERSED AND REMANDED




KEVIN SHEPHERD, Maryville, for Appellant

ROBERT H. WATSON, JR., Watson, Hollow & Reeves, P.L.C., for
Appellee




                            O P I N I O N



                                                 Goddard, P.J.
          This appeal from the Circuit Court of Blount County

concerns liability under the Tennessee Governmental Tort

Liability Act, which grants immunity, subject to certain

statutory exceptions, to governmental entities pursuant to

Tennessee Code Annotated § 29-20-201.   Cynthia Y. Long, the

Plaintiff/Appellant, appeals the Trial Court’s judgment on

directed verdict in favor of the City of Maryville, the

Defendant/Appellee.




          Ms. Long’s sole issue, which we restate, is whether the

Trial Court erred by granting the City’s motion for a directed

verdict at the close of her case in chief.   We reverse the

judgment of the Trial Court and remand for further proceedings.




          Around late October or early November 1994, Ms. Long

and her friend, Susan Williams, began walking daily.   The women

would walk each day after work, and during the first few weeks of


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their walking program, they noticed several lights were out

inside the Greenbelt Park in Maryville.   Mrs. Williams’ husband,

Dr. Charles Williams, a Maryville chiropractor and one of Ms.

Long’s doctors, testified that he had contacted someone in the

City’s Parks and Recreation Division in either November or

December 1994 about several lights being out in the park,

although he could not remember with whom he spoke or exactly when

he informed someone about the lights being out.




           Ms. Long and Mrs. Williams were walking in the

Greenbelt Park between 5:00 and 5:30 p.m. on January 5, 1995.

The two women were walking near the water fountain in the park

and noticed that the fountain still had water shooting into the

air, although the temperature was at or below freezing.     The two

women were traveling downhill on the walking path and noticed

that a lamppost had an orange tag on it and that the light was

out.   While continuing to walk down the path, Ms. Long stated

that she felt a mist of water from the fountain on her face just


                                3
before she stepped on a patch of black ice on the path, fell, and

hit her head on the pavement.




          In his deposition, Rick Whaley, the public works

manager for the City of Maryville, testified regarding the

operation of the water fountain and the repairs to lighting in

the Greenbelt Park.   He stated that the fountain, which has been

in the park at least since 1985, is set to operate from 9:00 a.m.

until 5:00 p.m. during the winter months, regardless of the

temperature.   He further testified that he had no knowledge of a

complaint about operating the fountain during freezing weather.

With respect to the lighting on the Greenbelt, Mr. Whaley stated

that if the lighting on the Greenbelt goes out and if the City

receives notice that lighting is out, then Gary Johnson, the

grounds maintenance supervisor, verifies that a light is out and

reports it to the electric department for repair.   According to

Mr. Whaley, a report to repair some lights on the Greenbelt was

made on November 23, 1994, and the repairs were completed by


                                4
December 2, 1994.     Therefore, the City maintains that it

checked the lights on the Greenbelt, identified the ones that

were not functioning by putting tape around the lamppost, and

repaired all of the lights that were not functioning by December

2, 1994.




             Ms. Long testified that as a result of her injuries,

she suffers from a sensitivity to high-pitched noises, as well as

from migraine headaches, and has suffered permanent impairment.




           We note first that the City moved for a directed

verdict at the close of Ms. Long’s case in chief.   Because GTLA

cases are nonjury proceedings, the proper motion is a motion to

dismiss.   See Tenn. Code Ann. § 29-20-307; Rule 41.02(2),

Tennessee Rules of Civil Procedure.   Our Supreme Court explained

the difference between the two motions in City of Columbia v.

C.F.W. Construction Company, 557 S.W.2d 734, 740 (Tenn. 1977):


                                5
Motions for a directed verdict are neither necessary
nor proper in a case which is being tried without a
jury. Motions for dismissal in non-jury cases under
Rule 41.-02(2), Tennessee Rules of Civil Procedure, and
motions for directed verdicts in jury cases under Rule
50, Tennessee Rules of Civil Procedure, are somewhat
similar, but, there is a fundamental difference between
the two motions, in that, in the jury case, the judge
is not the trier of the facts while in the non-jury
case he is the trier of the facts. In the jury case he
must consider the evidence most favorably for the
plaintiff, allow all reasonable inferences in
plaintiff’s favor and disregard all counteracting
evidence, and, so considered, if there is any material
evidence to support a verdict for plaintiff, he must
deny the motion. But in the non-jury case, when a
motion to dismiss is made at the close of plaintiff’s
case under Rule 41.02(2), the trial judge must
impartially weigh and evaluate the evidence in the same
manner as though he were making findings of fact at the
conclusion of all of the evidence for 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, or,
the trial judge, in his discretion, may decline to
render judgment until the close of all the evidence.
The action should be dismissed if on the facts found
and the applicable law the plaintiff has shown no right
to relief.




                          6
          In an opinion of this Court, Cole v. Clifton, 833

S.W.2d 75 (Tenn. Ct. App. 1992), we addressed the standard of

review as to such motions made at the conclusion of the

Plaintiff’s proof more specifically (at page 77):



          In reviewing a judgment in a nonjury case
     dismissing a proceeding at the close of plaintiff’s
     proof, we review the case de novo on the record of the
     trial court, with a presumption of the correctness of
     the judgment unless the preponderance of the evidence
     is otherwise. Tenn.R.App.P. 13(d); Nold v. Selmer Bank
     & Trust Co., 558 S.W.2d 442, 444 (Tenn.App.1977).



          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


                                7
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.




          For the foregoing reasons, the judgment of the Trial

Court is reversed, and the cause remanded for further proceedings

consistent with this opinion.   As Ms. Long has presented her case

in chief, she is restricted to the proof in the record, and the

City is now entitled to present its case.   Costs of appeal are

adjudged against the City of Maryville and its surety.



                                    ________________________
                                    Houston M. Goddard, P.J.




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CONCUR:



   (Dissenting Opinion)
Charles D. Susano, Jr., J.



___________________________
D. Michael Swiney, J.




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