                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                            September 15, 2008 Session

      JAMES CONDRA and SABRA CONDRA v. BRADLEY COUNTY,
                         TENNESSEE

                  Direct Appeal from the Circuit Court for Bradley County
                  No. V02342H      Hon. John B. Hagler, Jr., Circuit Judge



                 No. E2007-01290-COA-R3-CV - FILED JANUARY 28, 2009



Plaintiffs brought this action against Bradley County, alleging the County was negligent in failing
to properly maintain a defective, unsafe and dangerous condition at the intersection of two county
roads, which caused an accident wherein plaintiffs were injured. The County filed a Motion for
Summary Judgment which the Trial Court granted on the grounds the County was immune. On
appeal, we hold the record before us does not support the Judgment granted by the Trial Court as a
matter of law. We reverse and remand for further proceedings.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which D. MICHAEL SWINEY ,
J., and SHARON G. LEE, SP . J., joined.


John M. Wolfe, Jr., Chattanooga, Tennessee, for appellants, James and Sabra Condra.

Jeffrey M. Atherton, Chattanooga, Tennessee, for appellee, Bradley County, Tennessee.



                                              OPINION


                Plaintiffs Complaint named John W. Sanders and Bradley County, Tennessee, (“the
County”) as defendants and alleged that plaintiffs’ vehicle was traveling on Young Road and slid
through the intersection with Trewitt Road, although the driver had applied the brakes. Defendant’s
vehicle struck plaintiffs’ vehicle, and plaintiffs averred Sanders was negligent in the operation of his
vehicle and that the County1 was negligent in failing to properly maintain defective, unsafe and
dangerous conditions on Young Road.

             Numerous motions were filed, depositions taken, and the Trial Court, sustained the
County’s Motion for Summary Judgment based on the following:

               1.      Plaintiff had not retained an expert within the time period provided by the
                       scheduling order.

               2.      The defense of governmental immunity was valid with regard to discretionary
                       function as well as lack of prior notice of defect.

               3.      If the Court was in error as to immunity, there was no evidence that would
                       support a finding of negligence on behalf of Bradley County.

            The Condras ultimately voluntarily non-suited John Sanders, and appealed from the
Summary Judgment granted the County. The issues raised on appeal are:

               A.      Did the Trial Court err when it granted summary judgment in favor of
                       Bradley County based on the doctrine of sovereign immunity?

               B.      Did the Trial Court err when it granted summary judgment in favor of
                       Bradley County when Bradley County did not affirmatively negate an
                       essential element of plaintiffs’ case?

               C.      Did the Trial Court err when it failed to order Bradley County to respond to
                       the request for production of documents propounded by the plaintiffs?

               D.      Did the Trial Court err when it denied plaintiffs’ Motion for a continuance to
                       allow Mr. Condra to reach maximum medical improvement and to allow
                       plaintiffs time to retain an expert?

               E.      Did the Trial Court err when it failed to grand Bradley County’s Motion to
                       Strike Plaintiffs’ Motion to Alter or Amend?

               Summary judgment is appropriate only when the moving party demonstrates that
there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of
law. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). The Court reviews

       1
        On appeal, Bradley County argues that because the complaint alleges negligence on the part
of “Hamilton” County and not Bradley County, the appeal should be dismissed. However, the use
of the word “Hamilton” was a one-time occurrence in the complaint and the complaint repeatedly
references “Bradley” in the body of the pleading as well as the caption.

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a summary judgment motion de novo as a question of law without a presumption of correctness.
Finister v. Humboldt General Hosp., Inc., 970 S.W.2d 435, 437 (Tenn. 1998). The evidence and
all reasonable inferences are viewed in the light most favorable to the nonmoving party. Byrd, at
210-211. If both the facts and conclusions to be drawn from them permit a reasonable person to
reach only one conclusion, summary judgment is appropriate. Robinson v. Omer, 952 S.W.2d 423,
426 (Tenn. 1997).

                 The first issue for consideration is whether the Trial Court correctly granted the
County’s Motion upon finding that “[t]he defense of governmental immunity was valid with regard
to discretionary function as well as lack of prior notice of defect.” Appellants argue that the
conclusion was incorrect, because the County did not produce evidence that would establish that the
maintenance of the road was a discretionary rather than an operational function. The County argues
that it was plaintiffs’ burden to produce evidence to defeat the Motion and in support of this position,
the County relies on the seminal case governing federal summary judgment procedure from the
United States Supreme Court, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986). In
a plurality opinion in Celotex, the Supreme Court held that a moving party may shift the burden of
production to a nonmoving party by alleging that “there is an absence of evidence to support the
nonmoving party’s case.” Hannan v. Alltel Publishing Co., No. E2006-013530SC-R11-CV, 2008
WL 4790535 (Tenn. Oct. 31, 2008)(citing Celotex at 325). The Sixth Circuit had interpreted Celotex
to permit “the moving party to merely challenge the nonmoving party to ‘put up or shut up’ on a
critical issue to shift the burden of production.” Hannan at *3 (citing Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1478 (6th Cir. 1989).

               The County takes the position that the Tennessee Supreme Court in Byrd aligned
itself with the federal interpretation of Rule 56 found in Celotex. The County, however,
acknowledges that there is conflict over the issue between the Eastern and Middle Sections of this
Court.

                On October 31, 2008, after the parties’ briefs were filed with this Court, the
Tennessee Supreme Court affirmed the Eastern Section’s opinion set forth in Hannan v. Alltel
Publishing Co., No. E2006-013530-SC-R11-CV, 2008 WL 4790535 (Tenn. Oct. 31, 2008)(Koch,
J. dissenting) when it held that “[t]his Court did not adopt a ‘put up or shut up’ approach to burden-
shifting in Byrd or in subsequent cases.” Hannan, 2008 WL at *4 and that the moving party’s
burden of production in Tennessee differs from the federal cases. Id. at *6. The Court explained as
follows:

               It is not enough for the moving party to challenge the nonmoving party to “put up or
               shut up” or even to cast doubt on a party’s ability to prove an element at trial. Nor
               has our Court ever followed the standard . . . that the moving party may simply show
               that the nonmoving party “lacks evidence to prove an essential element of its claim.”
               See Blair [v. W. Town Mall], 130 S.W.3d [761] at 768 [Tenn. 2004]; Staples [v. CBL
               & Assocs., Inc.], 15 S.W.3d [83] at 88 [Tenn. 2000]; McCarley [v. W. Quality Food
               Serv.], 960 S.W.2d [585] at 588 [Tenn. 1998]. This standard is identical to Justice


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               Brennan’s standard which we rejected in Byrd v. Byrd, 847 S.W.2d at 215 n.5; see
               Celotex, 477 U.S. at 331 (Brennan, J., dissenting). . . . [I]n Tennessee, a moving party
               who seeks to shift the burden of production to the nonmoving party who bears the
               burden of proof at trial must either: (1) affirmatively negate an essential element of
               the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an
               essential element of the claim at trial.

                The Supreme Court concluded its opinion by stating that because the movant Alltel
failed to negate an essential element of the Hannans’ claim, in that case damages, or show that the
Hannans could not prove an essential element of their claim, the burden never shifted to the Hannans
to show that they could prove damages. Id. at *8.

              The Condras assert in their complaint that “any immunity . . . claimed by Bradley
County, Tennessee had been removed pursuant to T.C.A. § 29-20-203" because the County had
actual and constructive notice of the defective and dangerous conditions of Young Road. Tenn.
Code Ann. § 29-20-203 is part of the Tennessee Governmental Tort Liability Act (“GTLA”), Tenn.
Code Ann. § 29-20-201 et seq. The Tennessee Supreme Court addressed the general principle in
both the GTLA and the common law that preceded the enactment of the Act in Helton v. Knox
County, Tenn., 922 S.W.2d 877 (Tenn. 1996):

               . . . governmental entities are generally immune from liability for any injury resulting
               from the exercise of governmental or proprietary functions. Tennessee Code
               Annotated § 29-20-201(a) (Supp. 1995) specifically restates this principle: “Except
               as may be otherwise provided in this chapter, all governmental entities shall be
               immune from suit for any injury which may result from the activities of such
               governmental entities wherein such governmental entities are engaged in the exercise
               and discharge of any of their functions, governmental or proprietary.” The GTLA
               then removes governmental immunity “for injuries resulting from the negligence
               operation by any employee of a motor vehicle or other equipment,” “for any injury
               caused by a defective, unsafe, or dangerous condition of any street, alley,
               sidewalk or highway,” “for any injury caused by the dangerous or defective
               condition of any public building, structure, dam, reservoir or other public
               improvement,” and “for injury proximately caused by a negligent act or omission of
               any employee,” with numerous exceptions. Thus, the GTLA is in derogation of
               common law and must be strictly construed. Mowdy v. Kelly, 667 S.W.2d 489, 491
               (Tenn. App. 1983).

Helton v. Knox County, Tenn. 922 S.W.2d 877, 881-882 (Tenn. 1996)(emphasis added).

              The County contends on appeal that the County is immune from this suit under the
GTLA pursuant to Tenn. Code Ann. § 29-20-203(b) because the County did not have notice of any
defect in Young Road. Section § 29-20-203(a) provides an exception to governmental immunity in
connection with injury caused by a defect in a government controlled road such as Young Road.


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Section § 29-20-203(b) contains the caveat that the exception to immunity will not apply however,
unless the governmental entity had actual or constructive notice of the defect. The statute provides:

               a) Immunity from suit of a governmental entity is removed for any injury caused by
               a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway,
               owned and controlled by such governmental entity. “Street” or “highway” includes
               traffic control devices thereon.

               (b) This section shall not apply unless constructive and/or actual notice to the
               governmental entity of such condition be alleged and proved . . . .

                  The Condras would ultimately bear the burden of proof at trial to show that the
County had either real or constructive notice of the alleged defect in Young Road. However, under
the burden shifting scheme as articulated in Byrd and Hannan applicable to a motion for summary
judgment, the County, as movant, bears the initial burden of production to either show affirmatively
that it had no notice of the defect or to show that the Condras cannot prove the element of notice at
trial. Hannan, at *3, 6. The County did not meet this requirement and, in fact, its statement of
undisputed facts filed with its motion for summary judgment states specifically that “[t]here is no
testimony that Defendant, Bradley County, had notice that this intersection was dangerous or was
in need of alteration or revision prior to the collision giving rise to this cause.” The County claims
in its brief that it did affirmatively show a lack of notice through the deposition testimony of County
road supervisor Tom Collins. This position is without merit, as the transcript of the Collins’
deposition, or even an excerpt of it, was not submitted with the motion for summary judgment, nor
was it before the Trial Court for consideration. The County produced nothing with its Motion for
Summary Judgment to negate the Condras’ claim that the County had notice of the defect in Young
Road, nor did the County show that the Condras could not prove the notice element of their claim
at trial. In fact, the County’s Motion for Summary Judgment and its supporting memorandum, did
not address the issue of notice to the County or the exception to immunity found in Tenn. Code Ann.
§ 29-20-203. Accordingly, the Trial Court erred when it granted summary judgment based on a
finding that the County was immune from suit, because it had no notice of a defect in the road at
issue.

               The County did make the argument that it was immune from suit under the GTLA
because the “allegations of defect in the roadway (and by inference, the scheduling of maintenance
and/or repair)” fell within the discretionary function of the County, and the Trial Court agreed.
Tenn. Code Ann. § 29-20-205(1) provides governmental immunity based on a finding that the
governmental entity’s action was a discretionary function, 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 arises out of:

               (1) the exercise or performance or the failure to exercise or perform a discretionary


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               function, whether or not the discretion is abused. . . .

               As noted above, the County is not immune from suit under Tenn. Code Ann. § 29-20-
203, but an application of one of the immunity exceptions under another section of the GTLA is not
precluded. See, Kirby v. Macon County, 892 S.W.2d 403, 406-407 (Tenn. 1994). Accordingly, each
section of the GTLA that provides an exception to governmental immunity should be considered
separately. Helton at 885.

               The County may be correct that scheduling maintenance and repair of the roads falls
within the discretionary function of the County. However, we do not reach this issue because the
County is not immune from suit under Tenn. Code Ann. § 29-20-203 as we have held. See, Zamek
v. O’Donnell, No. W2006-00522-COA-R3-CV, 2007 WL 98481 at *3 (Tenn. Ct. App. Jan. 16,
2007). Moreover, even if we were called upon to decide this issue, the County failed to come
forward with an affidavit or other evidence that would show that the maintenance of Young Road
was a discretionary function and not merely an operational function.

              As we have stated, The Trial Court’s granting of summary judgment in favor of the
County on the basis of sovereign immunity was error.

               The Trial Court held that in addition to a finding that the County was immune from
suit under the GTLA, summary judgment was appropriate as “there was no evidence that would
support a finding of negligence on behalf of Bradley County.” This conclusion is in error, because
the movant County did not meet its burden of production. The shifting burden of production
required on a motion for summary judgment was spelled out by the Tennessee Supreme Court in
Byrd v. Hall, and clarified in Hannan v. Alltel as follows:

               Summary judgment is appropriate when the moving party can show that there is no
               genuine issue of material fact and that it is entitled to judgment as a matter of law.
               Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). In Byrd,
               this Court set out the basic principles involved in determining whether a motion for
               summary judgment should be granted. The moving party has the ultimate burden of
               persuading the court that “there are no disputed, material facts creating a genuine
               issue for trial . . . and that he is entitled to judgment as a matter of law.” Byrd, 847
               S.W.2d at 215. If the moving party makes a properly supported motion, the burden
               of production then shifts to the nonmoving party to show that a genuine issue of
               material fact exists. Id. To meet its burden of production and shift the burden
               to the nonmoving party, the moving party must either affirmatively negate an
               essential element of the nonmoving party’s claim or establish an affirmative
               defense. Id. At 215 n.5. If the moving party does not satisfy its initial burden of
               production, the court should dismiss the motion for summary judgment. See Id. at
               215. Summary judgment should be granted only when, with the facts viewed in favor
               of the nonmoving party, it is clear that no genuine issue of material fact exists. Id.
               at 210-11.


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Hannan v. Alltel Publishing Co., 2008 WL 4790535 at *3 (Tenn. Oct. 31, 2008). In Hannan, the
Court discarded the term “establish an affirmative defense” as confusing, Id. at *4, and clarified the
burden of production borne by the movant before the burden is shifted to the nonmoving party to
mean that the movant must “affirmatively negate an essential element of the nonmoving party’s
claim” or “show that the nonmoving party cannot prove an essential element of the claim at trial.”
Id. at *3. As further clarification, the Court warned that “the moving party may not, however, merely
point to omissions in the nonmoving party’s proof and allege that the nonmoving party cannot prove
the element at trial.” Id. at *7 (citing Blair, 130 S.W.3d at 768). Moreover, the Court specifically
rejected the “put up or shut up” approach to burden-shifting as set forth in Celotex Corp.

               The County failed to meet the requirement that it affirmatively negate an essential
element of plaintiffs’ claim or show that the plaintiffs cannot prove an essential element of the claim,
and the Trial Court is also reversed on this basis.

               We pretermit the issue of whether the Trial Court erred in failing to order Bradley
County to respond to the request for production of documents. In view of our holding in this case,
such issues can be resolved upon remand of the case.

                We also pretermit the issue of whether the Trial Court erred in denying plaintiffs’
Motion for Continuance to allow Mr. Condra to reach maximum medical improvement, and to allow
plaintiffs time to retain an expert, because the issue is moot in view of our holding.

                Next, the County’s issue is that the Trial Court failed to grant the County’s Motion
to Strike Plaintiffs’ Motion to Alter or Amend. We conclude without elaboration that this Motion
is without merit.

              For the foregoing reasons, we reverse the summary judgment granted in favor of the
defendant, and remand for further proceedings consistent with this Opinion.

               The cost of the appeal is assessed to Bradley County, Tennessee.




                                                        ______________________________
                                                        HERSCHEL PICKENS FRANKS, P.J.




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