                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                    September 19, 2002 Session

                    NORMAN HAMBY v. STATE OF TENNESSEE

                    A Direct Appeal from the Tennessee Claims Commission
                No. 20100628    The Honorable Randy C. Camp, Commissioner



                                    No. W2002-00928-COA-R3-CV


       This is a premises liability case arising from Plaintiff’s fall into a ventilation pit on the
University of Tennessee at Memphis (referred to herein as UT) campus when an aluminum grate
covering the opening collapsed while Plaintiff was standing on it. The Commissioner of Claims of
the Western Division held that the accident was not foreseeable and that UT did not have actual or
constructive notice of the dangerous condition of the grating over the pit. Plaintiff appeals. We
reverse and remand.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Claims Commission Reversed and
                                        Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER,
J. and HOLLY KIRBY LILLARD, J., joined.

Stephen R. Leffler, Memphis, For Appellant, Norman Hamby

Tanda R. Grisham, Memphis, For Appellee, State of Tennessee

                                                 OPINION

        This is a premises liability case arising from Plaintiff’s fall into a ventilation pit on the
University of Tennessee at Memphis (referred to herein as UT) campus when an aluminum grate
covering the opening collapsed while Plaintiff was standing on it. UT retained the Pickering Firm
to perform an investigation regarding underground fuel storage tanks and boiler fueling problems.
Norman R. Hamby (“Appellant,” “Plaintiff,” or “Mr. Hamby”) is senior design engineer with the
Pickering Firm. On March 17, 2000, Mr. Hamby, accompanied by Mr. Peter Hurda of Cummins
Mid-South, arrived at the UT Center for Health Sciences in Memphis.1 Upon arrival, Mr. Hamby
checked in with UT employee Ed Justis at the physical plant then proceeded to the Dunn Dental


        1
         Mr. Hurda was accompanying M r. Hamb y for the purpose of providing pricing for whatever equipment Mr.
Hamby recommended so that the P ickering Firm could give an accurate quote to UT .
Building on the UT campus.2 Outside the Dunn Dental Building, facing Union Avenue, is a
ventilation system. This ground-level opening is approximately thirty (30) feet long and
approximately five (5) to seven (7) feet deep. The surface of the opening is approximately ten (10)
inches above ground and the entire surface of the opening is covered with a series of aluminum
grates.3 At the time of the accident, each grate rested on a 1 to 1 ½ inch concrete ledge. The
equipment that Mr. Hamby was on site to inspect was located at the bottom of the ventilation system
in the basement of the Dunn Dental Building. In order to get a better look at the equipment, Mr.
Hamby stepped onto one of the grates. The grate slipped off the ledge and both the grate and Mr.
Hamby fell into the pit. Mr. Hamby suffered injury to his right shoulder and left knee.

         Richard Tiebout, the manager of maintenance and construction for UT, testified that he had
not inspected the ventilation system prior to the accident but had subsequently modified the grates
so that they sat on a three (3) inch shelf instead of the 1 ½ inch ledge.4 The same type and grade of
aluminum grates was used in the modification.5 Mr. Tiebout also indicated that the grates were only
meant as a covering for the ventilation system and not as a walkway over the area; however, he does
testify that there were no signs or warnings posted to indicate that the grates were not to be walked
on or were otherwise unsafe. The ventilation system is not accessible by walkway nor is it near an
entrance to the Dunn Dental Building. There is no requirement or policy by UT that such grated
openings must be surrounded by guardrails or that signs must be posted.6 Prior to Mr. Hamby’s
accident, the grating had been in place for twenty (20) to twenty-five (25) years without incident.

        On October 19, 2000, Mr. Hamby filed a claim against the State of Tennessee for personal
injuries under T.C.A. § 9-8-301(a)(1)(C).7          On January 24, 2001, the Division of Claims
Administration notified Mr. Hamby that it was unable to act on his claim within the ninety (90) day
time limit, and the claim was transferred to the Claims Commission pursuant to T.C.A. § 9-8-402(c).


         2
            Mr. Justis did not accompany Messrs. Hamby and Hurda to the site where the accident o ccurred. The UT
Policies on Safety and Health include a provision wherein “the campus p olice shall restrict are as of risk. V isitors shall
be required to be accompanied by or under the direct responsibility of an authorized UT Memphis student, faculty or
staff mem ber.”

         3
          To clarify, the 10 inches abo ve ground level is the result of a concrete “curb” around the perimeter of the
opening. In order to step onto the grating from the ground, one must step up and over the curb.

         4
          Mr. Teaford indicates that no inspection of the grate was done because, prior to Mr. Hamby’s accident, UT
had had no other rep orts of incidents or injuries associates with any grate coverings.

         5
           Mr. Hugh T eaford, the safety officer for UT, testified that the new grates were still “springy” when stepped
on and should not be used as a walkway. According to Mr. Teaford, steel replacement grates were not used because the
area was not meant as a walkway but on ly to keep som eone who might trip from falling into the pit. Additional work
was needed in form of heavier and more secure grates in order to make the area transversable.

         6
          Mr. Tiebout also testified that there were no TO SHA warnings or citations relating to UT’s inspection of the
grating. Mr. Te aford testified that UT is “self-inspecting” and presents reports to TO SHA every year.

         7
             The University of Tennessee at Memphis is a subdivision of the State of Tennessee.

                                                            -2-
On January 16, 2002, the case was heard before the Honorable Randy Camp, Commissioner of
Claims, Western Division. At the close of all proof, the Commissioner ruled from the bench for the
State of Tennessee. A Final Order was entered on January 23, 2002. The Order stated that “the risk
was unforeseeable and the University had no notice of the danger until after Mr. Hamby fell.” The
Commissioner did not address the issue of comparative fault.

       Mr. Hamby appeals and presents one issue for review: Whether the University of Tennessee
at Memphis had actual or constructive knowledge of the dangerous condition of the defective grating
which collapsed causing injury to Norman Hamby.

        This is a direct appeal from the Tennessee Claims Commission and is governed by the
Tennessee Rules of Appellate Procedure. See T.C.A. § 9-8-403(a)(1). Since this is a non-jury case,
we review the case de novo upon the record with a presumption of correctness of the findings of fact
by the commission. Unless evidence preponderates against the findings we must affirm, absent error
of law. Sanders v. State, 783 S.W.2d 948 (Tenn. Ct. App.1989); Tenn. R. App. P. 13 (d).

       The jurisdiction of the Tennessee Claims Commission was invoked pursuant to T.C.A. § 9-8-
307(a)(1)(C) (2001 Supp.), which states:

               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 based on the acts or omissions of “state
               employees,” as defined in § 8-42-101(3), 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;

Id.

        A negligence claim requires a plaintiff to prove the following elements: (1) a duty of care
owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of
care amounting to breach of the duty; (3) an injury or loss; (4) causation in fact; and (5) proximate
causation. See, e.g., Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993). The duty element is
a question of law requiring the court to determine “whether the interest of the plaintiff which has
suffered invasion was entitled to legal protection at the hands of the defendant.” Id. at 870 (quoting


                                                    -3-
W. Page Keeton, Prosser & Keeton on Torts, § 37 at 236 (5th ed. 1984)). In order to answer this
question in the context of a T.C.A. § 9-8-307(a)(1)(C) claim, we must first decide what duty the
state owes to invitees on state property. To that end, the following provisions of T.C.A. § 9-8-307
are also applicable to this case:

               (c) The determination of the state’s liability in tort shall be based on
               the traditional tort concepts of duty and the reasonably prudent
               person’s standard of care.

               (d) The state will be liable for actual damages only. No award shall
               be made unless the facts found by the commission would entitle the
               claimant to a judgment in an action at law if the state had been a
               private individual...

Id.

      This Court has previously addressed the issue of what, if any, duty the state owes to visitors
who come onto property owned by the state and has reached the following conclusion:

               From the usual and ordinary meaning of the words of this statute, we
               believe that T.C.A. § 9-8-307(a)(1)(C) removes the state’s immunity
               to the same extent as the obligation of a private owner or occupier of
               land. In other words, for the purposes of determining the state’s
               liability after removal of immunity, the statute merely codifies the
               common law obligation of the owner or occupier of land. Owners
               and occupiers of land have an obligation to exercise ordinary care and
               diligence in maintaining their premises in a safe condition for visitors
               upon the premises, and are under an affirmative duty to protect these
               persons against dangers of which they know or which, with
               reasonable care, they might discover.

Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989) (citing McCormick v. Waters, 594
S.W.2d 385 (Tenn. 1980)).

        Appellee argues that its duty to Mr. Hamby falls within an exception to the general rule as
outlined above. Relying in part upon Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996), the State of
Tennessee takes the position that, although a premises owner generally owes a contractor the duty
to provide a reasonably safe workplace, that duty does not apply when the contractor is injured while
making the specific repairs called for in the contract. The gravamen of the State’s theory is that the
grates that covered the ventilation area were part of the equipment Mr. Hamby was on site to
inspect. From the record before us, we cannot reach this conclusion. The Pickering Firm was
retained by UT to do a study of the underground equipment housed in the basement and extending
into the ventilation area of the Dunn Dental Building. Contrary to the State’s argument, the grates


                                                 -4-
covering the opening to the ventilation pit were not intimately associated with the equipment Mr.
Hamby was there to inspect.8 Consequently, the State owed Mr. Hamby, its business invitee, a duty
to remove or warn against latent or hidden dangerous conditions on the premises of which the State
was or should have been aware through the exercise of reasonable diligence. See Blair v. Campbell,
924 S.W.2d 75 at 76.

        The State also argues that, at the time of Mr. Hamby’s accident, the grates were being used
in a manner not intended. In short, the grates were not meant as a walkway and Mr. Hamby, because
of his engineering expertise and experience, should have found that fact open and obvious. It is true
that the traditional rationale for imposing a duty on an owner/occupier of land to a visitor or invitee
was the owner’s superior knowledge of conditions on the premises. See, e.g., Kendall Oil Co. v.
Payne, 293 S.W.2d 40, 42 (Tenn. Ct. App. 1955). However, our Supreme Court has recently held
that a duty may exist even where the injury-causing condition is alleged to be open and obvious to
the plaintiff:

                  That a danger to the plaintiff was open and obvious does not, ipso
                  facto, relieve a defendant of a duty of care. Instead, the duty issue
                  must be analyzed with regard to foreseeability and gravity of harm,
                  and the feasibility and availability of alternative conduct that would
                  have prevented the harm. The factors provided in the Restatement
                  (Second) of Torts, § 343(A) relate directly to the foreseeability
                  question; in short, if the foreseeability and gravity of harm posed
                  from a defendant’s conduct, even if open and obvious, outweighed
                  the burden on the defendant to engage in alternative conduct to avoid
                  the harm, there is a duty to act with reasonable care.

Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998).

        Of course, the duty due an invitee exists only while the visitor is on the part of the premises
which the occupier has opened to the visitor for the purpose that makes the visitor an invitee. The
Restatement (Second) of Torts § 332 refers to this as the “area of invitation.” The area of invitation
will vary according to the facts of each case but in all cases the area will extend to all parts of the
premises to which the purpose may reasonably be expected to take the invitee, and to those areas
which are located so as to lead the invitee to reasonably think they are open to his or her purpose.
See Prosser and Keeton on Torts § 61 at 424 (5th ed. 1984). On the other hand, there is no liability
for harm resulting from “conditions from which no unreasonable risk was to be anticipated, or from
those which the occupier neither knew about nor could have discovered with reasonable care.” Id.

         8
            Take the following analogous situation by way of clarification: A homeowner contracts with a plumber to
repair a hot water heater located in the homeowner’s basement. In order to enter the basement, the plumber must open
a doo r and go down a stairway. If the plumber is injured by the door or on the stairway because of some defect that the
homeowner could have discovered with reasonable care, the homeowner has breached a duty to the plumber. If, on the
other hand, the plum ber m akes it safely to the water heater and is subsequently injured because of a loose valve or some
other defect in the appliance, the ho meo wner has breached no duty.

                                                           -5-
at 426. In this regard, the “mere existence of a defect or danger is generally insufficient to establish
liability, unless it is shown to be of such a character or of such duration that the [fact finder] may
reasonably conclude that due care would have discovered it.” Id. at 426-27. In short, foreseeability
is the gravamen of negligence:

                Foreseeability is the test of negligence. If the injury which occurred
                could not have been reasonably foreseen, the duty of care does not
                arise, and even though the act of the defendant in fact caused the
                injury, there is no negligence and no liability. The plaintiff must
                show that the injury was a reasonably foreseeable probability, not just
                a remote possibility, and that some action within the [defendant’s]
                power more probably than not would have prevented the injury.

Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992) (citations omitted).

          Turning to the facts of this case, we find that UT could reasonably have expected, and indeed
should have expected, that Mr. Hamby’s inspection would take him to the ventilation pit. Since Mr.
Hamby’s purpose for being on UT’s campus was to observe the equipment that lay at the bottom of
that pit, he was well within reason to think that the area of invitation included the grates that covered
the surface of that pit. Because the grates were within the area of invitation, Mr. Hamby’s accident
was not a “remote possibility” but rather a “foreseeable probability.” Even independent of Mr.
Hamby’s accident, the record indicates that a similar accident was foreseeable. The State’s witness,
Mr. Richard Teaford, testified that “this grating was just to prevent people from tripping and falling
into the pit....” If one of the purposes of the grating was to keep a person who tripped from
accidentally falling into the pit, UT had a duty to inspect the grates to ensure that they would support
the weight of a human body. Whether the body tripped and fell upon the grating or stepped over the
concrete curb onto the grating is not paramount, although a falling body would certainly exert more
force than a standing body. What is important is UT’s contemplation that a person, by whatever
means, could foreseeably make his or her way onto the grates.

         The State also relies in part upon the fact that the grates had been in place for some twenty
(20) to twenty-five (25) years without incident to prove that the accident at issue here was not a
foreseeable probability. We cannot agree. In light of the duty imposed upon UT as discussed in
depth above, UT should have inspected this area long before, and regardless of, Mr. Hamby’s
business on the campus. Our interpretation is that UT had twenty (20) to twenty-five (25) years in
which to conduct what should have been a routine inspection–an inspection that would have shown
the dangerous condition presented by an easily accessible grating system supported only by a 1 ½
inch ledge. The fact that no one was injured prior to Mr. Hamby falls under the auspices of luck and
cannot be the basis for relieving UT of a clear duty.

        In addressing the issue before us, our task does not end with our finding that the Plaintiff
satisfied the basic elements of a negligence claim. In Jones v. Zayre, Inc., 600 S.W.2d 730 (Tenn.
Ct. App. 1980), the Eastern Section of this Court said:


                                                  -6-
                Before an owner or operator of premises can be held liable for
                negligence in allowing a dangerous or defective condition to exist on
                its premise, it must have (1) been created by the owner or operator or
                his agent or, (2) if the condition was created by someone other than
                the owner or operator or his agent, there must be actual or
                constructive notice on the part of the owner of operator that the
                condition existed prior to the accident. Gargaro v. Kroger Grocery
                & Baking Co., 22 Tenn.App. 70, 118 S.W.2d 561 (1938).

600 S.W.2d at 732.

         Before discussing the issue of notice as it relates to this case, we must first be clear that the
issue of comparative fault is not before this Court. Furthermore, the issue of comparative fault is
not part of a notice analysis. From our reading of the record, it appears that the Commissioner, in
his ruling from the bench, ties Mr. Hamby’s alleged fault into his ruling on the issue of notice and
foreseeability. The Appellant relies, in part, upon this Court’s decision in Sanders v. State, 783
S.W.2d 948 (Tenn. Ct. App. 1989). In Sanders a nine-year-old boy sustained a head injury when
he fell from playground equipment at a Tennessee state park. The injury resulted from an exposed
concrete footing. In his ruling from the bench, the Commissioner distinguishes Mr. Hamby’s claim
from Sanders as follows:

                In [the Sanders] case the Claims Commission found that the State did
                have notice of a dangerous condition, that being the exposed concrete
                footing in either one of two ways: Either it was built that way by the
                State with it exposed or over a period of time, the footing became
                exposed and the employee who had corrected any erosion that might
                have occurred to the exposed footing would have had actual notice of
                the dangerous condition by not filling in that area with soil and wood
                chips or either the State constructed it that way and would have
                known by the construction that it was a dangerous condition with it
                being exposed and children would be playing there.

                The Court of Appeals found that the State was liable in that case
                because of the knowledge in either of the ways that the State would
                have had that that condition was dangerous.

                I have to distinguish the Sanders case from the claim we have here.
                In the Sanders case, we have a 9 year old child playing in a
                playground that was built for the purpose of children playing there.

                In this case, we have a situation where these grates were covering an
                area that was not intended for walking and was out of the normal
                traffic area. So, I have to distinguish it on that basis, with the age of


                                                   -7-
               the Claimant and the fact that Mr. Hamby had been on these grates
               before.

               He had had training and experience in the area that he was out there
               to do the study in, and he was familiar with the grates and even
               testified that he had walked on them in the past. The problems I have
               here with this claim are the foreseeability and notice issues.

               *                                      *                             *

               Mr. Hamby was a professional person. He was there for a particular
               purpose. He was familiar with that area and had been on those grates
               before. There is no testimony that any action of any kind ever
               occurred on these grates. There is no testimony that these grates were
               in a particular area where it would even be foreseeable that someone
               would walk on them unless they desired to do so, that it was their
               intent to do so.


       Foreseeability is the test under negligence as discussed above and comparative fault is a
separate inquiry altogether. The issue of notice should be decided under the two-pronged test
outlined in Jones v. Zayre, Inc.. The first question is whether the state or its agent(s) created or
constructed the offending instrumentality. If that answer is yes, the inquiry stops and the state is
charged with actual notice. If the answer is no, then there must be actual or constructive notice on
the part of the owner of operator that the condition existed prior to the accident The age,
experience, profession, or other attributes of the injured person are not part of the notice inquiry.
Likewise, neither the placement of the instrumentality, nor its intended purpose is relevant to the
issue of notice. Having already addressed the grating’s purpose and placement under the duty
analysis above, we leave Mr. Hamby’s experience and actions to the arena of comparative fault.

        We find that this case is not distinguishable from Sanders on the issue of notice. In
Sanders , we said that, “In the case at bar, the state constructed the offending instrumentality and
obviously must be charged with notice of its condition as constructed.” 783 S.W.2d 948, 952 (Tenn.
Ct. App.1989). See also McGaughy v. City of Memphis, 823 S.W.2d 209, 214-15 (Tenn. Ct.
App.1991). According to the testimony in this case, the grating was part of the original construction
of the Dunn Dental Building. Before this accident, the grating had remained unchanged in the
twenty (20) to twenty-five (25) years since the building was completed. Testimony indicated that
the grating was there to keep debris out of the pit and to protect anyone from falling into it.
Although the grating succeeded in keeping debris from the machinery below, it was woefully
inadequate for its other function of keeping people from falling into the pit. Because we find that
the state or its agent(s) created the offending instrumentality when it constructed the Dunn Dental
Building, we must charge them with notice under the first prong of Jones v. Zayre, Inc.



                                                -8-
        For the foregoing reasons, we find that the evidence preponderates against the
Commissioner’s ruling. We, therefore, reverse the order of the Commissioner and remand the case
for further proceedings which may include the issue of comparative fault. Costs of appeal are
assessed against the appellee, State of Tennessee.




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




                                              -9-
