                                           I N      T H E     C O U R T O F A P P E A L S
                                                            A T K N O X V I L L E                                             FILED
                                                                                                                            March 24, 1999

                                                                                                                          Cecil Crowson, Jr.
                                                                                                                          Appellate C ourt
                                                                                                                              Clerk

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K N O X V I L L E F O R A P P E L L E E T H E R O G E R S G R O U P , I N C .




                                                       O    P   I     N       I   O   N




                                                                                                          Goddard, P.J.




                   Robert A. Keener and the Keener Corporation appeal a

summary judgment granted in favor of Knox County and The Rogers

Group, Inc., in a suit seeking as to Knox County compensation on

the theory of inverse condemnation and against Rogers, for

damages to their property as a result of the construction of what
is known in the record as the Henley Connector in downtown

Knoxville.



          In the Plaintiffs’ case against Knox County it is their

theory that notwithstanding the fact a settlement was reached as

to the condemnation case against Mr. Keener, by which Knox County

acquired property necessary for the construction of the

Connector, the resulting activities of the contractors during

construction amounted to a further taking of their property for

which they were entitled to compensation.



          As to Rogers, the suit seeks damages on the theory of

negligence for the same activities and strict liability for

blasting done by Rogers’ subcontractor, Arnold Construction

Company, which ultimately settled the Plaintiffs’ claim.



          As best we understand the Trial Judge’s memorandum

opinion, he found that the clause in the settlement decree as to

the condemnation suit, which released Keener Corporation for any

incidental damages, barred a suit in inverse condemnation, and as

to Rogers that no blasting was done by it on the dates alleged

and, consequently, it could not be liable.



          The Plaintiffs’ appeal raises the following two issues:



     I.   WHETHER OR NOT THE TRIAL COURT ERRED IN GRANTING
     KNOX COUNTY’S SUMMARY JUDGMENT

     II. WHETHER OR NOT THE TRIAL COURT ERRED IN GRANTING
     THE ROGER’S GROUP’S MOTION FOR SUMMARY JUDGMENT




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             As pertinent to this appeal the following pleadings and

orders are contained in the record:

     1.      November 28, 1994.    Original complaint filed against

Knox County, Rogers and Arnold.

     2.      February 17, 1995.    Amended complaint as to Knox County

in response to a motion for a more specific statement of claim.

     3.      February 24, 1995.    Amended and supplemental complaint

as to all three Defendants.

     4.      August 16, 1995.    Judgment entered granting summary

judgment to Rogers and Knox County.

     5.   December 11, 1995.       Second amended and substituted

complaint.

     6.      October 1, 1997.      Third amended and supplemental

complaint.

     7.   December 20, 1997.       Order striking references to Rogers

and “State of Tennessee personnel” from third amended and

supplemental complaint.

     8.      January 15, 1998.    Order of compromise and dismissal as

to Arnold.



          We first observe before going to the merits of this

case that the standard used for determining the propriety of

summary judgment is set out in Byrd v. Hall, 847 S.W.2d 208, 214

(Tenn.1993):



          Rule 56 comes into play only when there is no
     genuine issue as to any material fact and the moving
     party is entitled to a judgment as a matter of law.
     Thus, the issues that lie at the heart of evaluating a
     summary judgment motion are: (1) whether a factual
     dispute exists; (2) whether the disputed fact is
     material to the outcome of the case, and (3) whether
     the disputed fact creates a genuine issue for trial.


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          The decree in the condemnation suit contained the

following provision:



          IT IS FURTHER ORDERED that the award set out
     hereinabove includes the actual fair cash market value
     of the property and property rights acquired in this
     cause and of any and all damages, whether actual or
     incidental, to the remainder of the property of the
     Defendant, and including full settlement of all claims
     for compensation due the Defendant because of the
     taking of the property described above and because of
     the construction of Highway Project No. 47002-2118-44,
     1-40-7(62)387 in Knoxville, Knox County, Tennessee, as
     it affects Tract No. 189-S.



          As to the claim against Knox County, the amended and

substituted complaint filed on February 24, 1995, sought recovery

only on the theory of inverse condemnation, and the Trial Court,

upon examining the foregoing order, concluded that the language

in the order regarding incidental damages was sufficiently broad

to preclude a case by the Plaintiffs under this theory.



          The case of Burchfield v. State of Tennessee, 774

S.W.2d 178 (Tenn.App.1988), addresses, although in a different

context, the facts that must be shown to sustain a finding that a

taking has occurred.   After reviewing a number of cases touching

on the question of a taking, we concluded the following (at page

183):



          Upon consideration of all the cases, we conclude
     that whether a taking has occurred depends on the facts
     of each case, specifically the nature, extent and
     duration of the intrusion.




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                        In the present case the affidavit of Mr. Keener

relative to the damages suffered by the Plaintiffs and the taking

of his property is set out in Appendix.



                        Upon viewing the affidavit of Mr. Keener in the light

most favorable to the Plaintiffs and indulging all reasonable

inferences in support of the Plaintiffs’ position, we conclude

that, as to many of the complaints1 he has enumerated, factual

disputes remain as to whether the complaints meet the test of

Burchfield relative to a temporary taking.



                        In reaching our conclusion, we are mindful of the case

of State v. Rascoe, 181 Tenn. 43, 178 S.W.2d 392 (1944), which

holds that--as pointed out in the brief of Knox County--parties

“are not entitled to compensation for damages naturally and

unavoidably resulting from the careful construction and operation

of the public improvement which damages are shared generally by

the owners whose lands lie within the range of inconveniences

necessarily attending that improvement.”



                        Before leaving the claim against Knox County, we note

it has raised two issues which merit attention.                                                                     First, it

contends in the third amended and substituted complaint, filed on

October 1, 1997, Knox County was not named as a party defendant,

but this is understandable because the suit against Knox County

had long since been resolved by the Trial Court’s entry of the

summary judgment on August 16, 1995.                                                       Indeed, this is apparent




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M o n r o e ,   5 7 8   S . W . 2 d 6 4 2 ( T e n n . A p p . 1 9 7 8 ) .

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because of the motion and subsequent order striking any reference

to Knox County or Rogers.



           By their second issue, Knox County contends a notice of

appeal was not timely filed because the summary judgment was

entered on August 16, 1995, and a notice of appeal was not filed

until January 29, 1998.   It should be noted that the summary

judgment entered was not made a final judgment pursuant to Rule

54 of the Tennessee Rules of Civil Procedure, and was not ripe

for an appeal until the entry of the order of compromise and

dismissal as to Arnold, which resolved all issues as to all

parties.



           As to Rogers, the Trial Judge’s grant of summary

judgment was predicated upon a finding that it did no blasting on

the dates alleged.   However, there is an affidavit by John Corum,

an officer of the Keener Corporation, that blasting did occur on

those particular days.    It may be that the Trial Court was saying

that, although blasting did occur by Arnold, the subcontractor,

none was done by the principal contractor, Rogers. The fallacy of

this reasoning, however, is that under the law of this State a

party causing damage by blasting is strictly liable, and the

general contractor is jointly liable with the subcontractor.

Walton-McDowell Co. v. Jackson, 5 Tenn. C.C.A. 324 (1914);

Cumberland Telephone & Telegraph Co. v. Stoneking, 1 Tenn. C.C.A.

241 (1911).



           It might be contended that a settlement of the case

against the party doing the blasting, in this case Arnold, served

to release the general contractor, Rogers.   While this would

                                 6
ordinarily be true, the predicate for the suit against Rogers is

not vicarious liability, but Rogers’ independent negligence.                                                                In

this case it would appear that--if the facts upon trial remain

the same--under the teachings of McIntyre v. Balentine, 833

S.W.2d 52 (Tenn.1992), and the law of this State that the prime

contractor and the subcontractor are jointly liable in cases of

damages occurring by blasting, Rogers would be liable for 50

percent of any damages found to have been suffered by the

Plaintiffs.



                     For the foregoing reasons the judgment of the Trial

Court is vacated and the cause remanded for further proceedings

not inconsistent with this opinion.                                       Costs of appeal are adjudged

one-half to the Plaintiffs and their surety and one-half to

Rogers.



                                                            _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
                                                            H o u s t o n M . G o d d a r d , P . J .


C O N C U R :



_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
H e r s c h e l P . F r a n k s , J .



        ( N o t P a r t i c i p a t i n g )
D o n     T . M c M u r r a y , J .




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