                                                                                          02/06/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 April 25, 2017 Session

           JESSIE MORGAN v. MEMPHIS LIGHT GAS & WATER

                  Appeal from the Circuit Court for Shelby County
               No. CT-001659-14        Felicia Corbin Johnson, Judge
                      ___________________________________

                           No. W2016-01249-COA-R3-CV
                       ___________________________________


Plaintiff, who fell in a puddle of water on property adjacent to a water tower located on
property owned by defendant, a governmental entity, brought suit under the Tennessee
Governmental Tort Liability Act, alleging that the water that caused him to fall was
caused by drainage from the water tower on defendant’s property. Following a trial, the
court held that there was no dangerous or defective condition in the water tower, such
that it was foreseeable that a person would be injured, and that the defendant had no
actual or constructive notice of any dangerous condition that caused plaintiff to fall; as a
consequence the Governmental Tort Liability Act did not operate to remove immunity.
The court also held that plaintiff and the owner of the property where plaintiff fell were
each at least 50 per cent at fault and, therefore, plaintiff could not recover. Plaintiff
appeals; discerning no error we affirm the judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and KENNY W. ARMSTRONG, JJ., joined.

Halbert E. Dockins, Jr., Jackson, Mississippi, for the appellant, Jessie Morgan.

Thomas R. Branch and Sasha B. Gilmore, Memphis, Tennessee, for the appellee,
Memphis Light, Gas, and Water.

                                        OPINION

I. FACTS AND PROCEDURAL HISTORY

       Memphis Light Gas and Water (“MLGW”) is a governmental entity that owns and
operates a water tank atop an elevated portion of land in Capleville, Tennessee; MLGW’s
property is adjacent to property owned by Cook Sales, Inc. (“Cook Sales”), where it
operates a storage facility. On April 13, 2013, Jessie Morgan and his wife, Tena Morgan,
visited Cook Sales with interest in purchasing a storage unit. The Morgans were shown a
unit by Frank Fiveash, an employee of Cook Sales; as he exited the unit, Mr. Morgan
slipped in a puddle of water and fell, sustaining a rotator cuff tear to his right shoulder
that required surgery, rehabilitation, and treatment.

        Mr. Morgan filed suit against Mr. Fiveash, Cook Sales, and MLGW on April 11,
2014, alleging he suffered economic losses and personal injuries as a result of the fall; he
asserted that the water tank located on MLGW’s property leaked, causing water to
intrude onto Cook Sales’ property and saturate the ground where he fell. MLGW denied
liability and asserted several affirmative defenses, including immunity pursuant to the
Tennessee Governmental Tort Liability Act, Tennessee Code Annotated section 29-20-
101, et seq., and comparative fault on the part of Mr. Morgan and Cook Sales. In due
course, Mr. Fiveash and Cook Sales were voluntarily dismissed from the case.

       A bench trial was held on February 17 and 18, 2016, wherein the trial court heard
testimony from Mr. Fiveash; Mr. and Mrs. Morgan and their daughter, Ashley; Theoric
Washington, the corporate representative for MLGW; and Mr. Roland Person, MLGW’s
supervisor for water operations and water plants. At the conclusion of the trial, the court
made an oral ruling, subsequently incorporated into an Opinion and Order, in which the
court stated numerous factual findings and held as follows:

       1. Plaintiff Jessie Morgan has failed to show that Defendant Memphis
       Light, Gas & Water’s water tower caused or created a dangerous or
       defective condition. The Court further found that the record was void of
       any problems or leaks for at least a 12-month period prior to the date on
       which Mr. Morgan was injured.
       2. For at least a 12-month period or more, there was absolutely nothing in
       the record to say that Memphis Light, Gas & Water’s water tower had a
       problem with water runoff. However, if there was a dangerous or defective
       condition, that condition existed on the Cook Sales property and was the
       responsibility of Cook Sales.
       3. Plaintiff Jessie Morgan has failed to demonstrate that Defendant
       Memphis Light, Gas & Water had actual or constructive notice of the
       alleged defective condition which Plaintiff contends caused his injuries.
       4. Plaintiff Jessie Morgan failed to prove that Memphis Light, Gas &
       Water’s water tower caused the ground at Cook Sales, Inc. to be wet,
       saturated and muddy at the time of Mr. Morgan’s fall on April 13, 2013.
       5. Plaintiff Jessie Morgan failed to prove that Memphis Light, Gas &
       Water’ water tower was the proximate cause of Mr. Morgan’s fall and
       injuries.

                                             2
       6. Defendant Cook Sales, Inc. was responsible for its property. The Court
       further finds that Cook Sales, Inc.’s employee, Frank Fiveash, knew or
       should have known that the ground at Cook Sales, Inc. was in a wet and
       unsafe condition. The Court also finds that Mr. Fiveash knew or should
       have known that taking a customer to see a shed through the wet, moist
       area posed a substantial and foreseeable risk that a customer could slip and
       fall, or otherwise be injured. The Court also finds that Cook Sales, Inc.
       could have relocated its shed to a safer location, in order to ensure the
       safety of its guests, but Cook Sales, Inc. elected not to do that.
       7. Plaintiff Jessie Morgan assumes some responsibility for his injuries as
       he should have appreciated the risk of falling, and should not have taken the
       risk of walking through the mud. The Court further finds that the risk was
       clear and that Mr. Morgan saw or should have known that the area was
       moist.
       8. Plaintiff Jessie Morgan cannot recover under the theory of comparative
       fault as Mr. Morgan was at least 50% at fault and the Cook Sales was at
       least 50% at fault for the alleged damages and injuries sustained by the
       Plaintiff.

The court entered judgment in favor of MLGW.

       Mr. Morgan appeals, articulating the following issues:

       1. Did the trial court err by failing to apply the common occurrence
       doctrine to the repeated instances where water drainage created a dangerous
       condition on the subject premises?

       2. Should the court have limited the testimony of MLGW’s witnesses who
       had no personal knowledge of the relevant facts of this case?

       3. Did the court err by ruling that comparative fault barred the plaintiff’s
       claims?

II. STANDARD OF REVIEW

       In a non-jury case such as this, our review of a trial court’s findings of fact is de
novo upon the record with a presumption of correctness, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d). If, however, the trial court has not made a
specific finding of fact on a particular matter, we will review the record to determine
where the preponderance of the evidence lies without employing a presumption of
correctness. Id. The trial court’s conclusions of law are reviewed de novo, and are
accorded no presumption of correctness. Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn.
2006) (citing State v. Wilson, 132 S.W.3d 340, 341 (Tenn. 2004)).
                                             3
III. ANALYSIS

         A. Notice

        The Tennessee Governmental Tort Liability Act (“GTLA”), Tennessee Code
Annotated section 29-20-101, et seq., grants the governmental entity immunity from suit
when engaged in governmental functions. Benn v. Public Bldg. Auth. of Knox Cty., No.
E2009-01083-COA-R3-CV, 2010 WL 2593932, at *2 (Tenn. Ct. App. June 28, 2010)
(citing Halliburton v. Town of Halls, 295 S.W.3d 636, 639 (Tenn. Ct. App. 2008) (perm.
app. denied)). There are several exceptions in the GTLA to the grant of immunity.
Halliburton, 295 S.W.3d at 639. In the complaint, Mr. Morgan did not identify a specific
provision in the GTLA by which immunity was removed. The trial court based its ruling
on Tennessee Code Annotated section 29-20-204, and in his brief on appeal, Mr. Morgan
acknowledges that section 29-20-204 is the basis of his claim that MLGW is liable; the
statute provides:

         (a) Immunity from suit of a governmental entity is removed for any injury
         caused by the dangerous or defective condition of any public building,
         structure, dam, reservoir or other public improvement owned and controlled
         by such governmental entity.

         (b) Immunity is not removed for latent defective conditions, nor shall this
         section apply unless constructive and/or actual notice to the governmental
         entity of such condition be alleged and proved in addition to the procedural
         notice required by § 29-20-302.[1]

The court in Fowler v. City of Memphis explained what constitutes notice for purposes of
the GTLA:

         The Tennessee Supreme Court has described actual notice as 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. Constructive notice, in contrast, is defined as 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. Constructive notice may be established by showing that a
         dangerous or defective condition existed for such a length of time that a
         property owner, in the exercise of reasonable care, should have become
         aware of it. Constructive notice may also be established by showing that the


1
    Tennessee Code Annotated section 29-20-302 was repealed by Acts 1987, ch. 405, § 7.
                                                   4
          dangerous condition resulted from a pattern of conduct, a recurring
          incident, or a general or continuing condition.

514 S.W.3d 732, 737-738 (Tenn. Ct. App. 2016) (internal citations omitted).

          In this case the court made the following findings with regard to the issue of
notice:

          1. Plaintiff Jessie Morgan has failed to show that Defendant Memphis
          Light, Gas & Water’s water tower caused or created a dangerous or
          defective condition. The Court further found that the record was void of
          any problems or leaks for at least a 12-month period prior to the date on
          which Mr. Morgan was injured.

          2. For at least a 12-month period or more, there was absolutely nothing in
          the record to say that MLGW’s water tower had a problem with water
          runoff. However, if there was a dangerous or defective condition, that
          condition existed on the Cook Sales property and was the responsibility of
          Cook Sales.

          3. Plaintiff Jessie Morgan has failed to demonstrate that Defendant
          Memphis Light, Gas & Water had actual or constructive notice of the
          alleged defective condition which Plaintiff contends caused his injuries.

       Mr. Morgan contends that the trial court erred in not applying the “common
occurrence” theory when it determined MLGW was not given notice that its water tower
was causing a dangerous condition on Cooks Sales’ property.2 He argues that
constructive notice was given to MLGW by Mr. Fiveash’s monthly phone calls to

2
 The common occurrence theory of liability was adopted by our Supreme Court in Blair v. West Town
Mall:

          We take this opportunity to hold that in Tennessee, plaintiffs may prove that a premises
          owner had constructive notice of the presence of a dangerous condition by showing a
          pattern of conduct, a recurring incident, or a general or continuing condition indicating
          the dangerous condition’s existence. This approach focuses directly on a principle firmly
          established in our case law that a premises owner’s duty to remedy a condition, not
          directly created by the owner, is based on that owner’s actual or constructive knowledge
          of the existence of the condition. It simply recognizes the logical conclusion that, when a
          dangerous condition occurs regularly, the premises owner is on constructive notice of the
          condition’s existence. This places a duty on that owner to take reasonable steps to remedy
          this commonly occurring dangerous condition.

130 S.W.3d 761, 765-66 (Tenn. 2004).

                                                      5
MLGW to complain of water coming from under the tower and MLGW’s records show a
recurring problem of water draining from MLGW’s property down onto Cook Sales’
property in May and December 2012 and January 2013.

       Testimony regarding the condition of the premises where the water tank was
located was provided largely through the testimony of Roland Person, MLGW’s
supervisor for water operations and water plants. Mr. Person detailed the MLGW water
production system and testified that the system includes fifteen overhead storage tanks,
including the Capleville tank, that are inspected monthly by MLGW personnel for
various matters, including “noticeable water leak[s] from ground” and “water leak on
piping.” Mr. Person testified that, according to MLGW’s inspection records covering all
of 2012 through March of 2013, there were no indications of any leaks at the Capleville
tank; and that a leak was discovered on April 15, two days after Mr. Morgan’s fall.3

       Although Mr. Morgan relies on the testimony of Mr. Fiveash that he complained
to MLGW on several occasions about water leaking on to Cook Sales’ property; Mr.
Fiveash was unable to provide any dates or times for these complaints. Theoric
Washington, a claims adjuster for MLGW, testified relative to calls that MLGW received
from Cook Sales from December 2011 through April 13, 2013. Mr. Washington testified
that there were consumption check calls in December 2011 and July 20124; a call on
January 31, 2012, regarding burst pipe at the back end of the MLGW property, which
was investigated and showed some standing water in the grass on Cook Sales’ property
but no indication of running water; and a call on January 8, 2013, that there was a water
leak on the property and, upon inspection, no leak was found.

       Consistent with the instruction of Blair, the burden of proof was on Mr. Morgan to
show that MLGW had actual or constructive notice of the condition of the water tower,
which he contends caused water to leak onto the Cook Sales premises, in order to remove
MLGW’s immunity under the GTLA. Viewed in context and taken as a whole, the
testimony of Mr. Fiveash does not preponderate against the trial court’s determination
that MLGW did not have actual or constructive notice that the water tank caused or
created a dangerous condition on Cook Sales property.5
3
   Mr. Person also testified that there is a “dry inspection” of each tank every five years, where an
independent contractor drains the tank and a sanitary survey conducted every two years by the State of
Tennessee; the survey conducted in May 2012 did not list any deficiencies with respect to the overhead
storage tanks.
4
  Mr. Washington explained that a consumption check is where a customer calls to inquire regarding
water consumption.
5
    Moreover, there is no testimony as to the source of the water which caused Mr. Morgan to fall.
Plaintiffs did not offer any expert testimony or competent lay testimony that the soggy condition on Cook
Sales’ property was caused in any way by a leak in the MLGW water tank. Mr. Fiveash’s testimony is
illustrative:
                                                   6
      B. Admission of Testimony of MLGW Employees

       Mr. Morgan cites to portions of the testimony of Mr. Person and Mr. Washington
and argues that the testimony should not have been allowed because the witnesses did not
have personal knowledge of the matters about which they testified as required by Rule
602 of the Tennessee Rules of Evidence and they were not designated as experts. The
testimony to which he objects was largely based on the witnesses’ review of MLGW’s
business records that were admitted into evidence without objection.

        The standard of review of the trial court’s admission of evidence was succinctly
set forth in Russell v. Ill. Cent. R.R. Co.:

      Decisions regarding the admission or exclusion of evidence are entrusted to
      the trial court’s discretion and will not be disturbed on appeal unless the
      trial court abused its discretion. An abuse of discretion occurs when the
      court applies incorrect legal standards, reaches an illogical conclusion, or
      employs reasoning that causes an injustice to the complaining party. When
      we review the trial court’s exercise of discretion, we presume that the
      court’s decision is correct and review the evidence in a light most favorable
      to upholding the decision.

No. W2013-02453-COA-R3-CV, 2015 WL 4039982, at *8 (Tenn. Ct. App. June 30,
2015) (internal citations omitted).

       Mr. Washington testified that, as adjuster for Mr. Morgan’s claim, he visited the
scene, gathered photographs, and reviewed MLGW records relating to the incident,
including those relating to burst pipe at the back of tank in January 2012, which reported
standing water on the Cook Sales property but no running water from the tank; that he
checked weather reports from January 2013 to the date of the incident; that MLGW


      Q. Okay. Now, it’s your contention that water from MLG&W from this water tower
      migrated underneath the land and came onto your property; is that correct?
      A. Correct.
      Q. Okay. Cook Sales has never hired any kind of drainage company or any kind of a
      plumbing company, or had any -- or done any kind of investigation to determine whether
      or not that water was actually from MLG&W’s tower or from your own property, have
      they?
      A. No.
      Q. Okay. Never talked with any kind of engineers to confirm this, correct?
      A. No.
      Q. Okay. They have never retained anybody to test the water or anything like that; is that
      correct?
      A. No.

                                                  7
records of an investigation made of a reported underground leak on January 8, 2013,
showed no leak found; that he did not personally handle any calls relating to the Cook
Sales property, but MLGW’s phone records indicated no calls from Mr. Fiveash after
January 8. Similarly, Mr. Person testified that his knowledge of the matters related to the
incident came from his review of MLGW’s records that were in his control.6 Among the
records informing Mr. Person’s testimony were documents of MLGW’s monthly
inspections of its water towers, including the Capleville water tower.

       Mr. Morgan contends that, pursuant to Rule 602 of the Tennessee Rules of
Evidence, the testimony of Mr. Washington and Mr. Person should have been excluded
or limited because they had “no personal knowledge of the relevant facts of the case”.
We respectfully disagree.

        Both witnesses were proffered and testified as MLGW employees with knowledge
of the facts and circumstances of Mr. Morgan’s fall; their testimony, although largely
based upon their review of MLGW records, is not a basis to exclude or limit it. Each
testified based on the content of the records and their own actions and did not express an
expert opinion on the ultimate issues, as contemplated by Tennessee Rule of Evidence
702.7 The records were admitted without objection and the court did not err in allowing
the witnesses to testify on the basis of the information contained therein.8

       Mr. Morgan also complains that Mr. Person, though not designated as an expert
witness, was allowed to testify as to the condition of the property, the cause of muddy
spots, rainwater as an “act of God,” and what he asserts were hearsay statements of
MLGW technicians describing how much water was leaking from MLGW’s tower down
to Cook Sales’ property on April 15, 2013, two days after Mr. Morgan’s fall. The
testimony cited by Mr. Morgan occurred during the court’s examination, wherein Mr.
Person was asked to explain the significance of a leak found at the “jockey pump,” which
is used to occasionally force water out of the tank; the gravamen of the testimony
forming Mr. Morgan’s assertion of error, which was not objected to at trial, is as follows:

          Q. (By the Court) I just have one or two other questions.
                On April 15 of 2013 when the MLG&W crew went out to service

6
    Mr. Person testified as follows:

          Q. All of your information is secondhand; it’s not your personal knowledge, correct?
          A. That’s not correct, because you’re asking me questions about things that’s in my
          control. Like right now, I am the steward of the maintenance records.
7
    Such opinions, had they been proffered, would have been admissible pursuant to Rule 701(a).
8
  The records were properly admitted as records of regularly conducted activity, within the meaning of
Rule 803(6).
                                                    8
      the complaint regarding the leak found at the jockey pump was not working
      correctly --
      A. It had a leak on it.
      Q. Yes, okay. If I understood your testimony correctly that the purpose of
      the pump is to pump water out?
      A. Out of the tank.
      Q. Out of the tank?
      A. That's right.
      Q. If it’s not working, then the water would not pump out of the tank, is
      that correct?
      A. Right. If it was not working, it would not pump out.
      Q. But you found a leak on a line? If you could explain when you say a
      line?
      A. Yes. The jockey pump -- well, during the testimony, you asked me about
      the lines that feed the tank. The tank is fed by a 24 inch line, so it will move
      a large amount of water under high pressure, so it would move pretty fast.
               The jockey pump on the other hand is designed for us to force water
      out of the tank so that we can always keep a fresh supply of water with
      chlorine in it.
               In this field with a two inch line, which is a lot smaller than that 24
      inch line, so the leak that was actually on the two inch line, the way it was
      described to me by the technicians that worked on it, because I specifically
      asked them how much water, what kind of water was leaking, and he told
      me it was like if a water faucet at your house was dripping because that
      line at the time because the pump was not on, it was not under pressure. It
      was just the water that was in that two inch line that forces it out of the
      tank.
               There is a check valve that keeps the water from – the check valve
      allows water to move in one direction only. So there's a check in between
      the pump and the tank.
               So even though there was a small steady stream of water coming out
      of it, it wasn't like we do when we intentionally are overflowing the tank or
      if we were draining the tank, because a two inch line that has no pressure
      on it is not going to flow water like a 24 inch main would because it blows
      holes in the ground.

Mr. Person proceeded to answer questions more specifically related to the operation of
the pump and its interaction with the other components of the water tower system; at the
conclusion of the court’s questions, Mr. Morgan did not examine the witness further.

       The court did not abuse its discretion in admitting Mr. Person’s testimony; it was
clearly helpful to the court’s understanding of the operation of the system and the
determination of the facts at issue, all within the parameters of Tennessee Rule of
                                             9
Evidence 701(a).9 His testimony, and Mr. Morgan’s objection thereto, is substantially
similar to that before this court in Merrell v. City of Memphis, No. W2013-00948-COA-
R3-CV, 2014 WL 173411 (Tenn. Ct. App. January 16, 2014), a suit under the Tennessee
Governmental Tort Liability Act, wherein a motorcycle rider sued the City when he was
injured after hitting a pothole in the street. Among the witnesses who testified were two
City employees who had worked on the road crew for many years; each opined that the
pothole at issue could have been formed overnight due to a water leak. Id. at *9. The
trial court held that the City did not have actual or constructive notice of the dangerous
condition, and consequently, the City’s immunity from suit was not removed in
accordance with Tennessee Code Annotated section 29-20-203(b). Id. at *1. The
plaintiff appealed, asserting that the trial court’s reliance on the lay opinions of the
witnesses was error. Id. at *3. We determined that the question of how potholes could be
formed was within the knowledge and understanding of laymen; we noted that both
employees had worked with the City for many years and were experienced in issues
related to road maintenance; and we recognized that each testified from their own
observations and personal experience seeing potholes form overnight due to water leaks.
Id. at *9 (internal citation omitted). Accordingly, we affirmed the judgment. Id. at *10.

       The fact that water flows downhill and accumulates into puddles is clearly within
the knowledge and common experience of laypersons. Similarly, the operation of the
tank and piping system is capable of understanding by laypersons given an appropriate
explanation of how the system is configured to do what it does; this was part and parcel
of Mr. Person’s testimony. As noted by the trial court, Mr. Person has been employed
with MLGW for over thirty years, all in water operations; the court gave his testimony
substantial weight.10 We have reviewed his testimony and agree that he is extremely
knowledgeable as to the operation of the system; his testimony, as found by the trial
court, was “very telling.” His testimony was supported by the MLGW records and Mr.
Morgan offered no countervailing proof.

9
     Tenn. R. Evid. 701(a) states:

           (a) Generally. If a witness is not testifying as an expert, the witness’s testimony in the
           form of opinions or inferences is limited to those opinions or inferences which are
                   (1) rationally based on the perception of the witness and
                   (2) helpful to a clear understanding of the witness’s testimony or the
                   determination of a fact in issue.
10
     The trial court stated the following relative to Mr. Person in its oral ruling:

           The Court found Mr. Roland Person’s testimony to be very telling. The Court found that
           he was extremely qualified, that he has been with MLGW for 32 years, has served in a
           supervisory capacity for 28 of those 32 years and has always been responsible for the
           maintenance and operation of MLGW’s water operation. He has had substantial training
           and education. He is licensed by the State of Tennessee. Specifically he is a certified
           licensed operator. He has a water treatment license, operator license.
                                                        10
      C. Comparative Fault

       Notwithstanding our determination that the record supports the determination that
there was no notice of any dangerous condition on MLGW’s property and that the
evidence does not support a finding that the MLGW water tower caused or contributed to
Mr. Morgan’s fall, we will address Mr. Morgan’s contention that the trial court failed to
apply the appropriate principles of comparative fault but “appeared to instead apply the
principles of assumption of risk and other defenses superseded when the Tennessee
Supreme Court adopted comparative negligence.”

      The court made the following ruling relative to the defense of comparative fault,
which had been pled by MLGW in its answer:

      1. Plaintiff Jessie Morgan has failed to show that Defendant Memphis
      Light, Gas & Water’s water tower caused or created a dangerous or
      defective condition. The Court further found that the record was void of
      any problems or leaks for at least a 12-month period prior to the date on
      which Mr. Morgan was injured.
      2. For at least a 12-month period or more, there was absolutely nothing in
      the record to say that MLGW’s water tower had a problem with water
      runoff. However, if there was a dangerous or defective condition, that
      condition existed on the Cook Sales property and was the responsibility of
      Cook Sales.
      3. Plaintiff Jessie Morgan has failed to demonstrate that Defendant
      Memphis Light, Gas & Water had actual or constructive notice of the
      alleged defective condition which Plaintiff contends caused his injuries.
      4. Plaintiff Jessie Morgan failed to prove that Memphis Light, Gas &
      Water’s water tower caused the ground at Cook Sales, Inc. to be wet,
      saturated and muddy at the time of Mr. Morgan’s fall on April 13, 2013.
      ***
      6. Defendant Cook Sales, Inc. was responsible for its property. The Court
      further finds that Cook Sales, Inc.’s employee, Frank Fiveash, knew or
      should have known that the ground at Cook Sales. Inc. was in a wet and
      unsafe condition. The Court also finds that Mr. Fiveash knew or should
      have known that taking a customer to see a shed through the wet, moist
      area posed a substantial and foreseeable risk that a customer could slip and
      fall, or otherwise be injured. The Court also finds that Cook Sales, Inc.
      could have relocated its shed to a safer location, in order to ensure the
      safety of its guests, but Cook Sales, Inc. elected not to do that.
      7. Plaintiff Jessie Morgan assumes some responsibility for his injuries as
      he should have appreciated the risk of falling, and should not have taken the
      risk of walking through the mud. The Court further finds that the risk was

                                           11
      clear and that Mr. Morgan saw or should have known that the area was
      moist.
      8. Plaintiff Jessie Morgan cannot recover under the theory of comparative
      fault as Mr. Morgan was at least 50% at fault and Cook Sales was also at
      least 50% at fault for the alleged damages and injuries sustained by the
      Plaintiff.

(Citations to record omitted). Mr. Morgan correctly notes that the apportionment of fault
is a question of fact, which we review with a presumption of correctness. See Durham ex
rel. Durham v. Noble, No. M2011-01579-COA-R3CV, 2012 WL 3041296, at *3 (Tenn.
Ct. App. July 25, 2012).

        As an initial matter, we note that to the extent Mr. Morgan suggests that the
traditional principles of assumption of risk and other defenses were “superseded” or were
otherwise negated by the adoption of the system of comparative fault in McIntyre v.
Balentine, 833 S.W.2d 52 (Tenn. 1992), he is incorrect. As noted in Eaton v. McClain:

      Although the above-mentioned doctrines [remote contributory negligence,
      last clear chance, implied assumption of risk] no longer have any
      independent existence, and thus cannot be invoked to completely bar
      recovery by the plaintiff, the principles of a given doctrine, if relevant, are
      still to be considered by the jury in apportioning fault.
      ***
      In summary, the percentage of fault assigned to each party should be
      dependent upon all the circumstances of the case, including such factors as:
      (1) the relative closeness of the causal relationship between the conduct of
      the defendant and the injury to the plaintiff; (2) the reasonableness of the
      party’ conduct in confronting a risk, such as whether the party knew of the
      risk, or should have known of it; (3) the extent to which the defendant
      failed to reasonably utilize an existing opportunity to avoid the injury to the
      plaintiff; (4) the existence of a sudden emergency requiring a hasty
      decision; (5) the significance of what the party was attempting to
      accomplish by the conduct, such as an attempt to save another’s life; and
      (6) the party’s particular capacities, such as age, maturity, training,
      education, and so forth.

891 S.W.2d 587, 592 (Tenn. 1994) (internal citations omitted).

       Upon review of the exhibits and testimony, the record fully supports the findings
by the trial court that Mr. Morgan failed to show that MLGW’s tank caused a defective
condition on the Cook Sales property or, if a dangerous condition existed on the property
that MLGW had notice of it. The court properly considered the Eaton factors in
determining that Cook Sales, which had a duty to use ordinary care to keep its premises
                                            12
safe, and Mr. Morgan, who had a duty to use reasonable care for his own safety, were
each at least 50 percent at fault. See, e.g., Tennessee Pattern Jury Instructions, Civil 9.01
and 9.05, respectively. There is material evidence in support of the apportionment of
fault.
       .
IV. CONCLUSION

       For the foregoing reasons we affirm the judgment in all respects.




                                                  RICHARD H. DINKINS, JUDGE




                                             13
