                        IN THE COURT OF APPEALS

                             AT KNOXVILLE                 FILED
                                                         August 17, 1998
JAMES ODOM, SR.,                       )   C/A NO. 03A01-9710-CV-00480
                                       )                Cecil Crowson, Jr.
     Plaintiff-Appellant,              )                  Appellate C ourt Clerk
                                       )
                                       )
v.                                     )   APPEAL AS OF RIGHT FROM THE
                                       )   HAMILTON COUNTY CIRCUIT COURT
                                       )
                                       )
                                       )
CITY OF CHATTANOOGA, TENNESSEE,        )
                                       )   HONORABLE L. MARIE WILLIAMS,
     Defendant-Appellee.               )   JUDGE




For Appellant                              For Appellee

ROBERT D. BRADSHAW                         LAWRENCE W. KELLY
Jenkins & Bradshaw, P.C.                   PHILLIP A. NOBLETT
Chattanooga, Tennessee                     Chattanooga, Tennessee




                            O P I N IO N




AFFIRMED AND REMANDED                                                Susano, J.

                                   1
              The plaintiff, James Odom, Sr. (“Odom”), sued the City

of Chattanooga (“the City”) under the Tennessee Governmental Tort

Liability Act (“GTLA”),1 seeking damages for injuries suffered in

the course of his employment with the City’s Department of Public

Works.      Odom alleges that he suffered a back and wrist injury as

a result of his extended use of a jackhammer and the performance

of other strenuous labor without the aid of proper equipment.

Following a bench trial, the trial court found in favor of the

City and dismissed the case.           Odom appealed, raising issues that

present the following questions for our review:



              1. Does the evidence preponderate against
              the trial court’s finding that the plaintiff
              failed to prove that the City violated
              various training provisions and the general
              duty clause of the Tennessee Occupational
              Safety and Health Act of 1972?

              2. Does the evidence preponderate against
              the trial court’s finding that the plaintiff
              failed to prove that the City violated its
              Personnel Ordinances?

              3. Was the City’s decision to place its
              limited number of backhoes on certain
              projects to the exclusion of others a
              discretionary function so as to preserve the
              City’s immunity from suit based on the
              plaintiff’s claim that he was injured because
              he was doing work that should have been
              performed by a backhoe?



                            I.   Standard of Review



              Our review of this non-jury case is de novo upon the

record of the proceedings below; however, that record comes to us

with a presumption that the trial court’s factual findings are



     1
         T.C.A. § 29-20-101, et seq.

                                         2
correct.    Rule 13(d), T.R.A.P.   We must honor this presumption

unless we find that the evidence preponderates against those

findings.    Id.; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,

91 (Tenn. 1993); Old Farm Bakery, Inc. v. Maxwell Assoc., 872

S.W.2d 682, 684 (Tenn.App. 1993).      The trial court’s conclusions

of law, however, are not accorded the same deference.      Campbell

v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley

v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).



            Our de novo review is tempered by the well-established

principle that the trial court is in the best position to assess

the credibility of the witnesses; accordingly, such

determinations are entitled to great weight on appeal.

Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);

Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991).



                             II.   Facts



            At the time of the events in question -- March 11

through 24, 1994 -- Odom was employed by the City as a “Laborer

III” on a street maintenance crew.      Among other things, Odom’s

crew was assigned to clean up behind a milling machine, which was

used to cut up old asphalt in areas designated for repaving.        In

addition to broken pieces of pavement, the milling machine

generally would leave a small margin of asphalt next to the

concrete curbs at the edge of the street.      The record indicates

that a backhoe with a front-end loader (“backhoe”) was usually,

but not always, available to assist in scraping up the asphalt

left behind by the milling machine.      The crew would then use a

                                   3
jackhammer to loosen any remaining pieces of asphalt that had not

been scraped up by the backhoe and to remove the margin of

asphalt along the curb.   Finally, a worker would shovel the

asphalt into the backhoe, which would then be used to load the

debris onto a truck.



           From March 14 through March 24, 1994, Odom’s crew did

not have the use of a backhoe.   Thus, Odom and his co-workers

were forced to use jackhammers to loosen most of the asphalt, and

shovels to load the broken asphalt into the truck.   It was and is

Odom’s contention that his crew was deprived of a backhoe as

punishment for their slow work on the preceding Friday, March 11.

Odom contends that George Maffett, a general foreman in the

City’s street maintenance department, had decided that the men

were engaged in a “work slowdown” on that date.   Odom testified

that his direct supervisor, Gerald Johnson, informed the crew

that they were being punished because of their slow work.

Johnson testified that Maffett had stated on March 11 that the

crew was not working fast enough.    In addition, Johnson testified

that Maffett told him that a backhoe was not available for Odom’s

crew.   Maffett also supposedly told Johnson that the crew did not

need a backhoe.   Johnson also testified that Maffett may have

made a statement to the effect that if the men could not work

without a backhoe, “that they just won’t have one at all.”



           Maffett, meanwhile, denied that he had punished the

crew by depriving it of a backhoe.   Maffett testified that such

equipment was not always available for each job, and that

decisions regarding the allocation of equipment, although


                                 4
sometimes left to him, were generally made by his own supervisor,

Paul Nation.    Nation, the assistant superintendent in charge of

street maintenance for the City, testified that Odom’s crew had

not been provided a backhoe either because none were available,

or because no one was available to operate it.           He testified that

the City owned three backhoes; there is evidence in the record

indicating that on most if not all of the dates in question, one

of the backhoes was in the shop, and the other two were being

used by other crews.2



            Odom initially testified that he had been required to

use a jackhammer for approximately eight hours a day on March 14,

15, 16, 17, 18, 21, 22, 23, and 24.         On cross examination,

however, he admitted that he had not worked on March 18, and that

his work on March 14 and 15 had not required the use of a

jackhammer.    He also stated that he had only worked about an hour

and a half on March 24 before reporting the injury to his back.



            During treatment for his back injury, Odom was also

diagnosed with carpal tunnel syndrome.          These conditions

necessitated extensive treatment, including an operation and

physical therapy.     According to Odom, he continues to have

extensive limitations on the use of his hand and back, and is

unable to perform his normal job duties.          Odom filed this action

for damages against the City, alleging that the City’s negligence

in failing to provide him a safe place to work and the proper

equipment to carry out his duties had proximately caused his


     2
       Nation’s testimony indicates that the only date within the relevant
time frame on which the backhoes were not being used by other crews was March
18, 1994. Odom testified, however, that he did not work on that date.

                                      5
injuries.    The case proceeded to trial without a jury.    Following

the close of all the proof, the trial court found, in pertinent

part, as follows:



            Numerous repaving jobs and street repair
            operations were being performed by the City
            of Chattanooga in various locations in March
            of 1994.

            The personnel on each job do not necessarily
            have a backhoe/front-end loader available to
            them for use on each job.

            Decisions concerning what equipment will be
            used by what crew were made by Gerald
            Johnson, George Maffet or Paul Nation, all of
            whom were in the supervisory chain above Mr.
            Odom.

            At the time complained of, the machinery Mr.
            Odom contends should have been available for
            the crew he worked on was being used on other
            jobs or in maintenance and was not available
            to the crew on which Mr. Odom was working.

            The plaintiff has not carried the burden of
            proof that any absence of availability of
            equipment to his crew was because of
            punishment for a work slow-down.

            The plaintiff has not carried the burden of
            proof to show the jack hammer use by Mr. Odom
            was in violation of OSHA or TOSHA.

            The plaintiff has not proved fault on the
            part of the defendant.

                             *    *    *

            The Court finds the allocation of the
            equipment for use by crews at various spots
            in Chattanooga for the repaving or repair of
            roads was a discretionary function and,
            accordingly, the defendant is immune from
            suit.

            The plaintiff has not proven there is any
            basis for removal of immunity in this
            case....




                                  6
The trial court thus dismissed the case, and Odom appealed.                            Odom

summarizes his argument on appeal as follows:



                Because the City of Chattanooga violated its
                own City Code in not training it safety
                officers and employees in OSHA/TOSHA
                requirements and the risks associated with
                jackhammer use, in not taking measures to
                abate the risk of serious personal injury
                associated with Mr. Odom’s jackhammer use as
                an employee of the City of Chattanooga, and
                in disciplining the crew on which Mr. Odom
                was working through subjecting them to
                abusive working conditions, rather than
                following the City Code’s provisions for
                discipline, the City of Chattanooga must be
                found to have committed three omissions/acts
                that constitute fault for which there is no
                immunity under the Governmental Tort
                Liability Act....



                                       III.    Analysis



                We first turn to Odom’s dual contentions that the City

was negligent in failing to properly train its supervisors and

laborers, and in failing to abate a known hazard, i.e., the risk

of injury from the use of a jackhammer.                        In this context, Odom

relies upon various provisions of Tennessee’s Occupational Safety

and Health Act of 1972 (“TOSHA”)3 regarding safety training that

have been incorporated into the City’s Code.4                        He also cites

TOSHA’s “general duty clause” -- codified at T.C.A. § 50-3-

105(1)5 -- which has also been incorporated into the Code.                           In

      3
          See T.C.A. § 50-3-101, et seq.
      4
          See C HATTANOOGA , T ENN ., C ODE § 2-271, et seq.
      5
       T.C.A. § 50-3-105(1) provides that “[e]ach               employer shall furnish to
each of their employees conditions of employment               and a place of employment
free from recognized hazards that are causing or               are likely to cause death or
serious injury or harm to their employees.” The                City’s Code contains a
similar provision regarding “known or recognized               hazards” but allows the
employer “a reasonable period of time to correct               any such hazards” once it
becomes aware of them. See C HATTANOOGA , T ENN ., C ODE       § 2-274.

                                                7
support of his position, Odom introduced, among other things, the

testimony of Dr. Tyler Kress, who opined that the City had not

complied with OSHA’s6 training requirements with regard to the

safe operation of jackhammers and the recognition of carpal

tunnel syndrome.        Dr. Kress also testified that Odom’s work

pattern was in violation of the general duty clause.



              We note that it was apparently Dr. Kress’ understanding

that Odom had essentially operated a jackhammer continuously for

seven work days -- an assumption that is in conflict with Odom’s

own testimony, as pointed out above.            Dr. Kress also admitted

that OSHA had yet to promulgate any regulations or guidelines

regarding repetitive-motion injuries or the relationship between

the use of vibrating tools and carpal tunnel syndrome.

Furthermore, Tracy Clark, an employee of the City responsible for

OSHA/TOSHA compliance, testified that as of March of 1994, no

OHSA/TOSHA standards regarding jackhammer use had been put into

effect.      Clark’s testimony was reinforced by that of James

Alsobrook, who works for the Tennessee Department of Labor in the

area of TOSHA compliance.         Alsobrook also testified that he had

never applied the general duty clause to the use of a jackhammer.



              With regard to Odom’s arguments concerning the City’s

alleged violations of various training provisions and the general

duty clause, it is clear that the trial court found that Odom had

failed to prove essential elements of his claim, i.e., that the

jackhammer had in fact been used improperly and/or that improper

use was the cause of Odom’s injuries.            In so finding, the trial


     6
         Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq.

                                        8
court accredited testimony elicited by the City to the effect

that no applicable standards or regulations existed, and that the

City thus had not failed to comply with OSHA/TOSHA or its own

Code.   With deference to the trial court’s credibility

determinations, Massengale, 915 S.W.2d at 819, we cannot say that

the evidence preponderates against its finding that Odom failed

to prove its cause of action predicated on the training

provisions and the general duty clause.



           We reach a similar conclusion regarding Odom’s

contention that the trial court erred in failing to find

negligence in the City’s alleged violation of various “Personnel

Ordinances” contained within its Code.      In this connection, Odom

argues that the City ignored applicable disciplinary procedures

and instead subjected Odom’s crew to abusive working conditions

as a form of punishment.   However, the trial court specifically

found that Odom had “not carried the burden of proof that any

absence of availability of equipment to his crew was because of

punishment for a work slowdown.”       In so holding, the trial court

obviously accredited the testimony of Maffett and Nation, who

maintained that the unavailability of the equipment was not

intended as punishment, but was simply because the equipment had

been assigned to other, higher-priority jobs or was undergoing

maintenance at the time.   We again note that the trial court was

in the best position to make such credibility determinations,

Massengale, 915 S.W.2d at 819; in light of this consideration,

and the substantial evidence in the record which supports the

trial court’s findings, we cannot say that the evidence

preponderates otherwise.


                                   9
          Since the trial court found no negligence with respect

to the City’s duties under TOSHA, OSHA, or its Personnel

Ordinances, it did not address whether such negligence, if

proven, would result in a removal of immunity under the GTLA; nor

do we.



          With respect to Odom’s third issue, the trial court

concluded that “the allocation of the equipment for use by crews

at various spots in Chattanooga for the repaving or repair of

roads was a discretionary function and, accordingly, the

defendant is immune from suit.”    T.C.A. § 29-20-205, found within

the GTLA, provides, in pertinent part, as follows:



          Immunity from suit of all governmental
          entities is removed for injury proximately
          caused by a negligent act or omission of any
          employee within the scope of his employment
          except if the injury:

          (1) Arises out of the exercise or performance
          or the failure to exercise or perform a
          discretionary function, whether or not the
          discretion is abused....



As stated by the Supreme Court,



          ...decisions that rise to the level of
          planning or policy-making are considered
          discretionary acts which do not give rise to
          tort liability, while decisions that are
          merely operational are not considered
          discretionary acts and, therefore, do not
          give rise to immunity.

                           *      *    *

          A consideration of the decision-making
          process, as well as the factors influencing a
          particular decision, will often reveal
          whether that decision is to be viewed as
          planning or operational.... [Planning, i.e.,

                                  10
         discretionary] decisions often result from
         assessing priorities; allocating resources;
         developing policies; or establishing plans,
         specifications, or schedules.



Bowers by Bowers v. City of Chattanooga, 826 S.W.2d 427, 430-31

(Tenn. 1992).   (Emphasis Added).      By the same token, the Supreme

Court recently noted in another opinion that “[d]ecisions that

include the allocation of limited resources among competing needs

do not need interference from the courts, absent clear guidance

from the legislature to the contrary.”        Helton v. Knox County,

Tennessee, 922 S.W.2d 877, 887 (Tenn. 1996).



          Upon review of the evidence in this case, we are of the

opinion that the decision regarding whether a backhoe would be

provided to Odom’s crew was a discretionary one.       It necessarily

involved “the allocation of resources” among competing jobs of

various priorities.    See Helton, 922 S.W.2d at 887, and Bowers,

826 S.W.2d at 431.    Thus, the City did not lose its immunity for

injuries suffered by Odom as a result of the fact that his crew

did not have a backhoe to perform their assigned tasks.



                           IV.   Conclusion



          In summary, we hold that the evidence does not

preponderate against the trial court’s findings regarding the

plaintiff’s failure to carry his burden of proof.       We also hold

that the trial court correctly determined that the City is immune

from liability arising out of its discretionary decisions

regarding the allocation of the equipment in question.



                                  11
Accordingly, the decision of the trial court is affirmed.   Costs

on appeal are taxed to the appellant.   This case is remanded to

the trial court for the collection of costs assessed there,

pursuant to applicable law.

                                    __________________________
                                    Charles D. Susano, Jr., J.




CONCUR:



_________________________
Herschel P. Franks, J.



_________________________
William H. Inman, Sr.J.




                               12
