EVELYN JUNE THOMASON,       )
                            )
     Plaintiff/Appellant,   )
                            )             Davidson Third Circuit
                            )             No. 94C-3358
VS.                         )
                            )             Appeal No.
                            )             01-A-01-9602-CV-00067
THE METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON   )
COUNTY,                     )
                            )
                                                                   FILED
     Defendant/Appellee.    )
                                                                   July 3, 1996

                   IN THE COURT OF APPEALS OF TENNESSEE        Cecil W. Crowson
                                                              Appellate Court Clerk
                        MIDDLE SECTION AT NASHVILLE


      APPEAL FROM THE THIRD CIRCUIT COURT OF DAVIDSON COUNTY

                           AT NASHVILLE, TENNESSEE


                   HONORABLE BARBARA N. HAYNES, JUDGE


ROBERT J. NOTESTINE, III
104 Woodmont Blvd.
Suite 115
Nashville, Tennessee 37205
ATTORNEY FOR PLAINTIFF/APPELLANT


The Department of Law of the
Metropolitan Government of
Nashville and Davidson County

JAMES L. MURPHY, III
Director of Law

WARREN A. JASPER
Metropolitan Attorney
204 Metropolitan Courthouse
Nashville, Tennessee 37201
FOR DEFENDANT/APPELLEE


REVERSED AND REMANDED

                                     HENRY F. TODD
                                     PRESIDING JUDGE, MIDDLE SECTION


CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
EVELYN JUNE THOMASON,                        )
                                             )
       Plaintiff/Appellant,                  )
                                             )      Davidson Third Circuit
                                             )      No. 94C-3358
VS.                                          )
                                             )      Appeal No.
                                             )      01-A-01-9602-CV-00067
THE METROPOLITAN GOVERNMENT                  )
OF NASHVILLE AND DAVIDSON                    )
COUNTY,                                      )
                                             )
       Defendant/Appellee.                   )

                                          OPINION


       The plaintiff, Evelyn June Thomason, has appealed from a summary judgment

dismissing her suit against the defendant, Metropolitan Government of Nashville and

Davidson County, Tennessee, for personal injuries sustained in a fall on the premises of the

Lentz Health Center, a facility owned and managed by the defendant.



       The complaint, as amended, alleged that, in an attempt to enter the building of the

Lentz Health Center she walked on an unlighted driveway and was caused to fall by a “speed

bump” in the driveway. The defendant was alleged to be negligent by failing to illuminate

the driveway for use after dark.



       The defendant filed the following motion to dismiss:

                Comes the defendant, the Metropolitan Government of
               Nashville and Davidson County, and moves this Honorable
               Court to dismiss the Amended Complaint filed against it. As
               grounds, the defendant states that the Amended Complaint fails
               to state a claim upon which relief can be granted. Tennessee
               Rules of Civil Procedure, No. 12.02(6). The defendant relies
               upon the attached Affidavit and Memorandum of Law in
               support of its motion.


       The supporting affidavit stated:

               . . . 2. The driveway in which the plaintiff tripped is one way
               for vehicles. The driveway has no space assigned for
               pedestrian travel. The driveway is designed for use by vehicles
               only.



                                             -2-
          3. The lighting in the area was adequate for vehicles entering the
       breezeway to park at the health center.

           4. All signs, safety and warning devices wee placed in
       contemplation of vehicles entering the parking area from the
       prescribed direction.

           5. At the point of the speed bump, there is no lighting
       device or fixture. All lighting fixtures are placed under the
       breezeway for parking and were adequate for parking under the
       breezeway.

           6. The Metropolitan Government received no complaints
       or advance notice that the speed bump, where the plaintiff
       tripped, constituted any danger to vehicles or pedestrians.
       There were no complaints regarding the lighting in this area for
       the one year period preceding the plaintiff’s accident.


Plaintiff’s responsive affidavit contained the following:

       . . . 2. I tripped over a speed bump in the driveway of the
       Center which was not marked or painted to distinguish it from
       the smooth asphalt pavement around it.

          3. The area surrounding the speed bump was unlighted
       and since the accident occurred in the evening, the speed bump
       could not be seen.

           4. I was forced to park in the rear of the Health Center due
       to the fact that all side parking was reserved by permit only for
       Health Center personnel. Therefore, the defendant in this case
       knew visitors had to park in the unlighted rear of the Health
       Center.

           5. Further, the defendant in this case had promulgated a
       policy of allowing night visitors to enter the building through
       the front door only, thereby forcing me, and others, to walk in
       the unlighted driveway to the front of the building.


Defendant filed a further affidavit stating;

       ...    3. The normal operating hours of the Health Center on
       January 6, 1994 were 8:00 a.m. until 8:00 p.m.

               4. On January 6, 1994, it was the policy of the Health
       Department that all entrances to the Health Center be unlocked
       to allow entry into the Health Center from all parking areas
       from 6:30 a.m. until 8:00 p.m.

                5. There was no policy in place on January 6, 1994
       forcing anyone to use the front entrance to the Health Center or
       to utilize any particular pathway to gain entry to the exclusion
       of the available entrances or pathways.



                                       -3-
                            6. There were no allegations prior to January 6, 1994,
                    that any policy promulgated by me regarding building hours or
                    permitted access created a dangerous condition or hazard.

                            7. There are sidewalks provided on all sides of the
                    Health Center providing access for pedestrian to the Health
                    Center.

                            8. There were no complaints one year prior to January
                    6, 1994 regrading inadequate lighting in any of the parking
                    areas at the Health Center.


        The Trial Judge entered an order stating:

                    ...     1. There was no dangerous, defective, or unsafe
                    condition justifying suit against Metro under the Tennessee
                    Governmental Tort Liability Act pursuant to T.C.A. § 29-20-
                    203(a).

                            2. Metro did not have notice of a dangerous, defective, or
                    unsafe condition as required by the Tennessee Governmental Tort
                    Liability Act pursuant to T.C.A. § 29-20-203(b) assuming such a
                    condition existed.

                            3. Because a dangerous, defective, or unsafe condition
                    and notice thereof are required before Metro can be held liable
                    for the injuries alleged to have been suffered by plaintiff,
                    plaintiff has failed to meet her burden under the Tennessee
                    Governmental Tort Liability Act.

                           It is, therefore, ORDERED, ADJUDGED and
                    DECREED that this cause be and the same is hereby dismissed,
                    with costs taxed to the plaintiff.


        The sole issue on appeal is whether the Trial Court erred in the summary dismissal of

plaintiff’s suit.



        Where evidence is presented to and considered by the Trial Court, a motion to dismiss

may be considered a motion for summary judgment. T.R.C.P. Rule 12.02.



        The party seeking a summary judgment has the burden of presenting evidence of facts

which, if not contradicted, entitled that party to judgment as a matter of law. Byrd v. Hall,

Tenn. 1993, 847 S.W.2d 1993.




                                                  -4-
       No presumption of correctness attaches to summary judgments which are decisions of

law and not of facts. Roberts v Roberts, Tenn. App. 1993, 845 S.W.2d 225.



       Plaintiff’s right to recover rests upon an unlighted access to a public building, locked

doors requiring motorists to walk a dark driveway to the only unlocked entrance, and an

unmarked “bump” in the driveway. Examination of the evidence offered by defendant fails

to disclose any uncontradicted evidence denying the existence of these three conditions.



       The motion to dismiss merely states that the complaint fails to state grounds for relief.

The complaint does state grounds for relief.



       The affidavit attached to the motion does not deny the allegations of the complaint,

but asserts other facts which might relieve the defendant of liability as a matter of law if

uncontradicted. However, plaintiff’s responsive affidavit clarified and specified the reasons

why the affidavit presented by defendant did not present a defense which was conclusive as a

matter of law.



       Prior notice of the dangerous condition was not necessary if, as alleged by plaintiff,

the conditions were rendered dangerous by the closure of access to the building from the

parking lot which required plaintiff to walk around the building on the driveway in the dark.

A map of the area attached to plaintiff’s affidavit illustrates the situation confronting plaintiff

when she found a side entrance locked and she was forced to walk in the driveway where

there was no sidewalk. A copy of this drawing is appended to this opinion. A notation on

the drawing identifies the locked access door which forced plaintiff to use the driveway to

reach the only unlocked door.



       Defendant relies upon evidence that policies of defendant required all entrances to be

open. This is not a conclusive response to plaintiff’s allegation that at least one entrance was



                                                -5-
locked. Plaintiff’s right to recovery is not based upon a policy of defendant, but upon an

alleged negligent violation of that policy by an employee of defendant in locking a door

which should have been left unlocked.



       Defendant presented evidence that there were sidewalks on all sides of the building,

but there is no evidence that the sidewalks were continuous. Moreover, plaintiff’s affidavit

and exhibit are evidence that there was no sidewalk at the point where she was injured.



       The summary judgment in favor of defendant is reversed and vacated. Costs of this

appeal are taxed against the defendant. The cause is remanded to the Trial Court for further

proceedings.



       Reversed and Remanded.



                                             _______________________________________
                                             HENRY F. TODD
                                             PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


_____________________________________
BEN H. CANTRELL, JUDGE


_____________________________________
WILLIAM C. KOCH, JR., JUDGE




                                              -6-
