                    IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT NASHVILLE
                 ______________________________________________

JEREMY PARENT, A Minor, b/n/f
Parents, and Guardians MARTIN
PARENT and JUDITH PARENT,

       Plaintiff-Appellant,                          Tennessee Claims Commission
                                                     No. 97001870
Vs.
                                                     C.A. No. 01A01-9702-BC-00055
STATE OF TENNESSEE,

      Defendant-Appellee.
____________________________________________________________________________

                   FROM THE TENNESSEE CLAIMS COMMISSION
                  THE HONORABLE W. R. BAKER, COMMISSIONER




                  Michael A. Kent; Cleary & Lockett, P.C. of Chattanooga
                                 For Plaintiff-Appellant

                     John Knox Walkup, Attorney General and Reporter
                         Mary M. Bers, Assistant Attorney General
                           David T. Whitefield, Senior Counsel
                                For Defendant-Appellee




                               VACATED AND REMANDED

                                        Opinion filed:



                              FILED
                           September 17, 1997                W. FRANK CRAWFORD,
                                                             PRESIDING JUDGE, W.S.
                           Cecil W. Crowson
                          Appellate Court Clerk

CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY KIRBY LILLARD, JUDGE

       This is an appeal of a Tennessee Claims Commission case. Plaintiffs, Jeremy Parent, a

minor, by his next friend, and his parents Martin Parent and Judith Parent (the Parents), appeal

the order of the Tennessee Claims Commission (Commission) granting the State of Tennessee’s
motion to dismiss the notice of claim for failure to state a claim upon which relief can be

granted.

       T.C.A. § 9-8-307(a)(1)(C)(Supp. 1996) provides:

                9-8-307. Jurisdiction - Claims - Waiver of actions - Standard

                for tort liability - Damages - Immunities - Definitions -

                Transfer of claims. - (a)(1) The commission or each

                commissioner sitting individually has exclusive jurisdiction to

                determine all monetary claims against the state falling within one

                (1) or more of the following categories:



                                *               *               *



                (C) Negligently created or maintained dangerous conditions on

                state controlled real property. The claimant under this subsection

                must establish the foreseeability of the risks and notice given to

                the proper state officials at a time sufficiently prior to the injury

                for the state to have taken appropriate measures . . . .



The State’s liability “shall be based on the traditional tort concepts of duty and the reasonable

prudent person’s standard of care.” T.C.A. § 9-8-307(c) (Supp. 1996).

        Claims commission proceedings are conducted pursuant to the Tennessee Rules of Civil

Procedure. T.C.A. § 9-8-403 (a)(1)(1992). In reviewing an appeal from an order dismissing a

suit for failure to state a claim upon which relief can be granted, we are limited to the allegations

in the complaint and must construe the complaint liberally in favor of the plaintiff, taking all of

the allegations of fact therein as true. Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn. 1975).

In Fuerst v. Methodist Hospital South, 566 S.W.2d 847 (Tenn. 1978), the Court quoted with

approval the United States Supreme Court in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 102,

2 L. Ed. 2d 80 (1957), as follows: “[A] complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim that would entitle him to relief.”

                                                 2
Fuerst, 566 S.W.2d at 848 (quoting Conley, 355 U.S. at 45-46, 78 S. Ct. at 102-03).

        To prevail in a suit for negligence, a plaintiff must prove the following: (1) a duty of

care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard

of care amounting to a breach of that duty; (3) injury; (4) causation in fact; and (5) proximate

causation. Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993).

        The Parents, residents of Inlet, New York, allege in their notice of claim that on April 8,

1996, they were vacationing in Tennessee and visiting Tims Ford State Park in Franklin County.

The claim avers that Jeremy, then seven years of age, was riding his bicycle on a paved bicycle

trail at the park when he came to a steep hill with a sharp curve at the bottom. There was no

warning sign or other notice of the steep hill or sharp curve and because of the dangerous

condition of the premises, Jeremy was unable to negotiate the turn and was thrown from his

bicycle into a creek bed sustaining serious injuries. The claim alleges that the State was

negligent in creating and maintaining a dangerous condition, that the State had actual or

constructive knowledge of the condition, and that the State knew or should have known of the

foreseeability of the risk to patrons of the park. The claim alleges that the Parents suffered

losses, injuries, and damages in the amount of $125,000.00.             On November 5, 1996, the

State filed a motion to dismiss the case, pursuant to Tenn. R. Civ. P. 12.02(6), for failure to state

a claim upon which relief may be granted. In its motion, the State asserts that T.C.A. § 70-7-101

et seq. shields landowners from negligence claims related to their property if the property is

made available for free recreational use, such as in this case. On November 20, 1996, the Parents

filed their response to the State’s motion to dismiss. In their response, the Parents assert that

T.C.A. § 70-7-101 et seq. has no application to this case and does not require a dismissal of the

action. On December 4, 1996, the State filed a reply to the Parents’ response to its motion to

dismiss. In an order dated December 12, 1996, the Commissioner granted the State’s motion and

dismissed the Parents’ claim.

        The Parents appeal the judgment of the Commissioner and present the following issues

for review, as stated in their brief:

                (1) Did the Commissioner err in granting the Motion to Dismiss
                filed by the State of Tennessee where issues of fact existed which
                might affect application of T.C.A. § 70-7-101, et seq.?



                                                 3
               (2) Did the Commissioner err in his interpretation of the
               application of T.C.A. § 70-7-101, et seq., to the facts alleged in
               the Complaint?

       This is a direct appeal from the Tennessee Claims Commission and is governed by the

Tennessee Rules of Appellate Procedure. T.C.A. § 9-8-401(a)(1) (1992).

       From our review of the Parents’ notice of claim, we find that the Parents have stated a

claim for relief as provided for in T.C.A. § 9-8-307(a)(1)(C). The State, while relying on the

provisions of T.C.A. § 70-7-101 et seq. as an absolute defense, has presented no proof that the

statute should apply in light of the statutory exceptions contained therein. Although the facts

may turn out to warrant the application of the exculpatory provisions of the statute, we cannot

on a Rule 12.02(6) motion assume that none of the exceptions apply.

       Accordingly, the order of the Commissioner dismissing the claim is vacated, and the case

is remanded to the Commission for such further proceedings as may be necessary. Costs of this

appeal are assessed against the State.

                                                     _________________________________
                                                     W. FRANK CRAWFORD,
                                                     PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




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