                          IN THE COURT OF APPEALS OF TENNESSEE
                                       AT JACKSON

                                                                         FILED
ROBERT E. WALL,                          )
                                         )                                 July 22, 1998
       Plaintiffs/Appellant,             )      Henry Law No. 529
                                         )                               Cecil Crowson, Jr.
vs.                                      )                               Appellate C ourt Clerk
                                         )      Appeal No. 02A01-9707-CV-00166
CITY OF PARIS, TENNESSEE,                )
and DIANA PIERCE d/b/a                   )
DIANA’S LIMITED also known               )
as DIANA’S,                              )
                                         )
       Defendants/Appellees.             )




                APPEAL FROM THE CIRCUIT COURT OF HENRY COUNTY
                             AT PARIS, TENNESSEE




                      THE HONORABLE C. CREED McGINLEY, JUDGE




For the Plaintiff/Appellant:             For the Defendants/Appellees:

Michael A. Jaynes                        Fred N. McLean
D. Tyler Kelly                           Paris, Tennessee
Charles L. Trotter, Jr.
Jackson, Tennessee


                                         AFFIRMED



                                         HOLLY KIRBY LILLARD, J.


CONCUR:


ALAN E. HIGHERS, J.


DAVID R. FARMER, J.
                                              OPINION

       The plaintiff in this case tripped and fell on a city sidewalk. After a bench trial, the trial court

found that the sidewalk was not dangerous or unsafe under the Tennessee Governmental Tort

Liability Act. We affirm.

       On March 15, 1996, Mr. Robert E. Wall (“Wall”) tripped and fell as he was walking along

the sidewalk of North Poplar Street in Victorian Square, Paris, Tennessee. Wall, an 82-year old

retiree, suffered a broken arm and lacerations to his hands and face as a result of the fall. Wall filed

suit under the Tennessee Governmental Tort Liability Act against the city of Paris (“City”). Under

Tennessee Code Annotated § 29-20-203 (1980 & Supp. 1997), Wall alleged that the City was

negligent in maintaining the sidewalk, and that it was unreasonably defective, unsafe, and dangerous.

After a bench trial, the trial court dismissed the action. From this decision, Wall now appeals.

       On appeal, Wall argues that the trial court erred in finding that the sidewalk was not a in a

defective condition at the time of the accident. We review the trial court’s findings of fact de novo,

with a presumption of correctness, unless the preponderance of the evidence proves otherwise. Tenn.

R. App. P. 13(d); Metropolitan Gov’t v. McKinney, 852 S.W.2d 233 (Tenn. App. 1992). The

presumption of correctness does not apply to the trial court’s conclusions of law. Tennessee

Farmers Mut. Ins. Co. v. American Mut. Liab. Ins. Co., 840 S.W.2d 933 (Tenn. App. 1992).

       Tennessee Code Annotated § 29-20-203(a) provides in pertinent part:

        Immunity from suit of a governmental entity is removed for any injury caused by a
        defective, unsafe, or dangerous condition of any . . . sidewalk . . . owned and
        controlled by such governmental entity.

To recover under Section 29-20-203, the plaintiff must prove, by a preponderance of the evidence,

(1) that the City owned and controlled the premises; (2) that the premises were in a defective, unsafe,

or dangerous condition; and (3) that the City had constructive and/or actual notice of the defective,

unsafe, or dangerous condition of the premises. Burgess v. Harley, 934 S.W.2d 58, 63 (Tenn. App.

1996). The parties stipulated that the City owned and controlled the sidewalk, and that the City had

notice of the condition of the sidewalk. The case turned on whether the sidewalk where the accident

occurred was defective or dangerous.

        The record showed that the sidewalk at issue had been patched. It is undisputed that the

sidewalk was scheduled for replacement at the time of the accident, and was replaced shortly after

the accident. Wall argues that this proves that the area was dangerous or defective. The City argues

that the sidewalk did not not present a danger to someone exercising ordinary care. After a bench
trial, the trial court found that the area of the sidewalk where Wall fell was patched but was not

defective. Testimony established that the patch did not create a raised or depressed area. When

questioned about the spot where he fell, Wall was unable to point to a specific feature about the area

that caused the fall:

        Q:      Was there any particular thing that you recall about this portion of the
        sidewalk that contributed to your trip and fall that you’ve told us about?
        A:      (The witness shook his head) I don’t remember, Michael. I just know I
        walked four or five steps and I caught my right foot and I went forward. That’s all.
        I didn’t see anything.

        After reviewing the record, which includes testimony about the sidewalk as well as

photographs, we find that the evidence does not preponderate against the trial court’s finding that

the sidewalk was not defective. Consequently, the trial court’s dismissal of the plaintiff’s lawsuit

is affirmed.

        The City requests that this appeal be deemed a frivolous appeal under Tennessee Code

Annotated § 27-1-122. This request is denied.

        The decision of the trial court is affirmed. Costs are taxed against the Appellant, for which

execution may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.


CONCUR:




ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




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