                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             April 16, 2002 Session

 WILLIAM R. LINDGREN, and wife, MELANIE LINDGREN v. CITY OF
                      JOHNSON CITY

                   Direct Appeal from the Washington County Law Court
                           No. 19720    Hon. Jean Stanley, Judge

                                      FILED JUNE 25, 2002

                                 No. E2001-01676-COA-R3-CV



Plaintiff was injured by falling on defendant’s sewer covering. The Trial Court found for plaintiff
and awarded damages against City. On appeal, we affirm finding of liability, but vacate award of
damages and remand with instructions to determine the total amount of damages, find percentage
of fault, and then enter judgment in accordance with the Governmental Tort Liability Act. We
Affirm in Part, Vacate in Part and Remand.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Law Court Affirmed in Part, Vacated
in Part and Remanded.

HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY , J., joined.

Earl R. Booze, Johnson City, Tennessee, for Appellant, City of Johnson City.

Anthony Alan Seaton, Johnson City, Tennessee, for Appellees, William R. Lindgren and wife,
Melanie Lindgren.



                                            OPINION


                In this action, plaintiffs sued for personal injuries suffered by William R. Lindgren
when he stepped on a rectangular shape sanitary sewer cover, which tilted and gave way under him
in a trap-door fashion.

               On April 4, 1998, plaintiff was walking on the west side of Roan Street in Johnson
City, when he observed a rectangular shaped cover, which appeared to him to be flat and secure, but
as he stepped on the corner of the cover it slipped in a “trap-door” action, pivoting up and causing
the opposite corner to puncture his groin and abdomen as he fell partially into the hole. Plaintiff
suffered life-threatening injuries requiring emergency surgery and five total hospitalizations.
Because of the extensive permanent damage to the abdominal wall, he is permanently restricted from
lifting more than ten pounds.

               This action was brought against the defendant, City of Johnson City, and ultimately
Frizzell Construction and Frizzell Engineering Company was joined as a defendant.

               At trial, the evidence revealed that about a week prior to the accident, Gary Waddell,
a surveyor for Frizzell Engineering, was at the site locating utilities for a topographical survey.
Waddell testified he recalled raising the lid, where plaintiff fell, enough to see down in the hole and
saw raw sewage running underneath, but he did not completely remove the lid. Because this was
not a typical round manhole, Waddell decided to call the City Engineer after he returned to his
office, the same day. He testified that he saw the piece of metal lying on the ground as dangerous,
and that it was a shallow sewer line underneath so he “called the City to alert them about this
problem”. With respect to his reason for calling the City, he further testified:

               Q.      All right. Now, as a matter of fact, you didn’t even feel like it was a
                       manhole, did you?

               A.      No, sir, I didn’t. That’s the reason I called the City was to see if they could
                       advise me as to what it was. I didn’t know why it was there or what the
                       situation was.

                Waddell testified he called the City Engineer, Alan Cantrell, whom he had known and
dealt with over the years, because he felt Cantrell would know what was going on. He further
testified “The response was that I remember getting from the City is that they didn’t know what it
was or why it was there, and basically it dropped at that point.” Plaintiff introduced testimony from
Frank Knisley, an architect who inspected the site the day after the accident, and took photographs
and measurements. He testified there was a three or four inch lip of sod accumulated over a corner
of the cover which was of longstanding duration, and in his opinion, any experienced person’s
inspection could spot this condition. He further opined that the reason the cover pivoted was dirt
and debris on the rim preventing it from properly seating the cover, and not a design flaw.

                Alan Cantrell, the City Engineer, testified and denied receiving any telephone call
from Waddell about the cover. He explained he had testified in his deposition that “it could be a
possibility” that Waddell called him, but he later checked his calendar and he was on vacation that
week. However, he admitted that he had no reason to doubt Waddell’s honesty and integrity if he
testified he did speak to him about a piece of sheet metal lying over a storm sewer.

                Doug Childers, Assistant Superintendent of the water and sewage department,
testified he had no prior complaints or records showing problems with this sanitary sewer cover, and

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no records of anyone having been at this location on any prior occasion. He did not know if the
cover had been moved at any time prior to Waddell’s lifting it.

             At the conclusion of the trial, the Trial Judge found the City had notice that Waddell
had moved the lid one week before the accident, and observed:

               It was well known to defendant that such a lid, not properly confined within the
               boundary of its rim can pivot and would not support the weight of a person stepping
               on it. It thus becomes like a land mine - benign until stepped on. This is especially
               true in light of the fact that this is in an area where people are expected to walk and
               that anyone could kick or hit this cover knocking it out of its frame. Under these
               facts, the City was obligated to make sure the cover was secure and stable.

Essentially, the Trial Court found Waddell made the phone call and we do not generally disturb the
fact finder’s finding of credibility.

              The Trial Court then assessed fault as 100% against the City and awarded Judgment
to Mr. Lindgren in the amount of $130,000.00 and $25,000.00 to his wife, Ms. Lindgren.

                Our review of a Trial Court’s finding of fact is de novo with a presumption of
correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Cross v. City of
Memphis, 20 S.W.3d 642 (Tenn. 2000). This standard also applies to appellate review of allocation
of fault in bench trials. Id. Suit was filed under the Governmental Tort Liability Act, Tenn. Code
Ann. §29-20-101 et seq., which basically codifies the common law obligations of owners and
occupiers of property embodied in premises liability law, which generally requires the exercise of
ordinary care and diligence in maintaining the premises, including an affirmative duty to protect
against dangers of which one knows or which, with reasonable care, might discover. See Sanders
v. State, 783 S.W.2d 948 (Tenn. Ct. App. 1989); McCormick v. Waters, 594 S.W.2d 385 (Tenn.
1980); Underwood v. HCA Health Servs. Of Tennessee, 892 S.W.2d 423, 427 (Tenn. Ct. App. 1994).
Whether a particular site is defective, unsafe or dangerous is a question of fact. Helton v. Knox
County, 922 S.W.2d 877 (Tenn. 1996).

                Actual notice is “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 Co., 892 S.W.2d 403, 409 (Tenn. 1994). Constructive notice is
“information or knowledge of a fact imputed by law to a person (although he may not actually have
it), 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.

               The issues as raised by the City on appeal are:

               I.      Whether the Plaintiffs failed to present sufficient evidence as required by
                       Tenn. Code Ann. §29-20-204(b) that the Defendant City of Johnson City had

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                        actual and/or constructive notice of the alleged dangerous condition of the
                        sanitary sewer cover on which the Plaintiff William Lindgren fell?

                II.     Whether the Court erred in finding the City of Johnson City one hundred
                        percent (100%) at fault based upon the evidence introduced at trial fo the
                        comparative fault/negligence of Plaintiff William Lindgren and Defendant
                        Frizzell Engineering?

                III.    Whether the trial court committed error in overruling the objection to
                        testimony and denying the Motion to Strike the testimony of Plaintiffs’
                        expert witness Frank Knisley offered at trial concerning matters upon which
                        he had not previously expressed an opinion in his pretrial discovery
                        depositions, affidavits and responses to interrogatories?

                 Sanders v. State, 783 S.W.2d 948 (Tenn. Ct. App. 1989), held that constructive notice
was established in that case where a concrete footing for monkey bars was dangerously exposed
above ground and injured the plaintiff. Notice was shown due to the sheer time element of wearing
away of the soil around the area through weather and scuffing of feet on the playground. As applied
to the facts of the case at bar, the discoloration of the portion of the sewer cover shows that the cover
was neglected by defendant for a long period of time, and that a build-up was allowed to accumulate
over a long period, as demonstrated by a three or four inch lip of well-established sod and grass and
clay which, if dislodged, could create a dangerous situation. Assistant Superintendent Childers
testified that removing the cover could make it very unstable, and he instructs employees who lift
covers to clean covers, and instructs them on how to set the covers properly. He then goes back and
checks their work behind them. We hold the City knew, or reasonably should have known of this
dangerous condition due to the lack of attention before and after the call by Waddell. See Bradford
v. City of Clarksville, 885 S.W.2d 78 (Tenn. Ct. App. 1994); Swafford v. City of Chattanooga, 743
S.W.2d 174, 177 (Tenn. Ct. App. 1987); Bragg v. Metropolitan Gov’t of Nashville, 1997 Tenn. App.
Lexis 928, 01A01-9703-CV-00111. Accord: Hawks v. City of Westmoreland, 960 S.W.2d 10 (Tenn.
1997).

                A trial court has considerable latitude in allocating fault between or among culpable
parties, and the appellate court reviews same with a presumption of correctness. Coln v. City of
Savannah, 966 S.W.2d 34, 44 (Tenn. 1998). In this case, the Trial Judge allocated no fault to the
plaintiff, and the evidence does not preponderate against that finding. However, the Trial Judge
allocated 100% fault to defendant City and pretermitted the issue of whether any fault should be
apportioned to Frizzell. The action as to Frizzell had been dismissed without prejudice, apparently
upon some settlement being made between the plaintiff and Frizzell.

                 The Trial Court has the responsibility to apportion fault to anyone having a degree
of culpability. See Carroll v. Whitney, 29 S.W.3d 14, 22 (Tenn. 2000); Dotson v. Blake, 29 S.W.3d
26 (Tenn. 2000); Bervocets v. Harde Ralls Pontiac-Olds, Inc., 891 S.W.2d 905 (Tenn. 1994). The
trier of fact in a comparative fault case, such as this, should first determine the total amount of the

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plaintiff’s damages without regard to fault, and then apportion damages on the percentage of fault
attributable to each tortfeasor. Grandstaff v. Haws, 36 S.W.3d 482 (Tenn. Ct. App. 2000). In this
case, the Trial Court did not follow this procedure, although defendant Johnson City had raised the
comparative fault of Frizzell as an affirmative defense. In a post-trial Motion, the plaintiff’s attorney
sought to correct this error. However, at defendant’s urging, the Court ruled that it had lost
jurisdiction of the case to the appellate process. We vacate the award of damages and remand with
directions to the Trial Court on this record, without hearing further proof, to determine the total
amount of damages to which plaintiff would be entitled, and then determine the percentage of fault,
if any, attributable to Frizzell, and then enter Judgment against defendant, based upon the percentage
of fault attributed to the City in accordance within the constraints of the Governmental Tort Liability
Act, Tenn. Code Ann. §29-20-101 et seq. Defendant also raised as an issue the admission of Frank
Knisley’s testimony, which we find to be without merit.

               The decisions of the Trial Court regarding the admission or exclusion of expert
testimony, are within the sound discretion of the Trial Court. White v. Vanderbilt University, 21
S.W.3d 215, 231 (Tenn. Ct. App. 1999); McDaniel v.CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn.
1997). This Court will not overturn a Trial Court’s decision, either to admit or exclude expert
testimony, unless it was arbitrary or an abuse of discretion. White; Buchanan v. Harris, 902 S.W.2d
941 (Tenn. Ct. App. 1995). In England v. Burns, 874 S.W.2d 32 (Tenn. Ct. App. 1993) this Court
said:

                       No sanctions are provided by the rules of civil procedure for failure to
                “seasonably” supplement a response to an interrogatory regarding expert testimony.
                See, Lyle v. Exxon Corp., 746 S.W.2d 694 (Tenn. 1988).

                        By extension, there is no provision in the rules for failure of a witness to
                report the formation of an opinion after testifying that he has not yet formed an
                opinion.

                       The resolution of the question of admissibility of the testimony of this witness
                was governed by a rule of fairness as administered within the sound discretion of the
                Trial Court.

               We hold the admissibility of Knisley’s opinion evidence expressed at trial was a
matter within the Trial Court’s sound discretion.

                The cause is remanded for further proceedings in accordance with this Opinion, and
the cost of the appeal in our discretion is assessed to the City of Johnson City.



                                                        _________________________
                                                        HERSCHEL PICKENS FRANKS, J.

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