                                                                                                    06/28/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      May 24, 2018 Session

    LASONYA ROBERTSON ET AL. v. CLARKSVILLE-MONTGOMERY
               COUNTY SCHOOL SYSTEM ET AL.

                   Appeal from the Circuit Court for Montgomery County
                       No. 15-CV-1954      Ross H. Hicks, Judge


                                No. M2017-02492-COA-R3-CV



BRANDON O. GIBSON, J., dissenting.

        I must respectfully dissent from the majority’s opinion in this case.

        The evidence presented at trial indicates that the school system’s “mopping
policy” was actually part of a larger “Departmental Safety Program” directed toward all
Clarksville-Montgomery County School System employees. For the “Custodial
Department,” the program provided, “[w]hen mopping floors, cleaning up spills, or
anytime the floor becomes wet for whatever reason, always put the wet floor signs out
until the area is completely dry.” For “Professional Staff,” the program provided,
“[a]lways pay close attention to wet floor signs or wet floor conditions to avoid slips and
falls.”

      Ms. Robertson testified that she did not see the wet-floor signs. In order to fully
understand the scene, the photographs submitted at trial are helpful.1




1
 The photographs contained herein have been cropped from the originals contained in the appellate
record.
Ms. Robertson testified at trial that the photo above “appears that it was taken from the
door of [her] classroom.” The photo below shows the same sign and a second sign a few
feet to the right.




                                           2
                                                                       0courts
                                                  'ILED
                                                                4ppe11:18
                                                          JA hNo.242
                                                                                 Clerk tt
                                                                                            Rec'd ay




Ms. Robertson testified that the photo above could have been taken either from her door
or from the classroom door next to hers. The photographs that follow were introduced as
exhibits at trial, but they are still-shot photos taken from the hallway surveillance video,
which was also introduced as an exhibit.
                                             3
       The video submitted as an exhibit shows that Ms. Robertson took three or four
steps once she comes in view of the surveillance camera before she slips and falls to the
floor. The custodian can be seen in the background mopping.


                                           4
       I agree with the majority that the school system’s custodian’s act of mopping was
operational in nature. Our Supreme Court, in Limbaugh v. Coffee Medical Center, 59
S.W.3d 73, 85 (Tenn. 2001), noted that

       decisions that merely implement pre-existing policies and regulations are
       considered to be operational in nature and require the decision-maker to act
       reasonably in implementing the established policy.           If the policy,
       regulation, or other standard of procedure mandates specific conduct, then
       any employee reasonably complying with that direction will not abrogate
       the entity’s immunity if the action furthers the underlying policies of the
       regulation. . . . If such an employee does not act reasonably but pursues a
       course of conduct that violates mandatory regulation, the discretionary
       function exception will not apply because the action would be contrary to
       the entity’s established policy.

(Internal citations omitted.) The question becomes whether the custodians in this case
acted reasonably. The majority concludes that the custodian, Mr. Mitchell, did not move
the wet-floor signs to indicate that a larger area had been mopped. Nor did another
custodian, who knew Ms. Robertson was in her classroom, verbally warn Ms. Robertson
of the mopping in the hallway.

        However, reading the Limbaugh citation above fully, the Tennessee Supreme
Court indicates that the opposite of “acting reasonably” is “pursu[ing] a course of
conduct that violates mandatory regulation.” Limbaugh, 59 S.W.3d at 85. The regulation
in this case requires the custodian to “always put the wet floor signs out until the area is
completely dry.” As the photos included herein indicate, two wet floor signs were placed
in the hallway. This action simply cannot be classified as a “course of conduct that
violates mandatory regulation.” Limbaugh, at 85. I fail to see how the placement of two
wet-floor signs, as depicted in the photographs above, is unreasonable. The trial court
and the majority determined that the absence of a wet-floor sign on the right side of the
hallway was not a reasonable implementation of the mopping policy. However, the
policy does not require signs on every square foot of the hallway, nor should it.

       I also disagree with the majority’s decision to re-allocate fault among the parties.
The trial court assigned 25% fault against Ms. Robertson, and the majority determines
she had no fault in her injuries. I find this particularly curious since the majority
apparently expects the school custodian to pepper the school hallway with wet-floor signs
in order to reasonably comply with the “mopping policy,” yet the same safety program
specifically requires professional staff to “pay close attention to wet floor signs.” The
majority determines that Ms. Robertson “acted reasonably in walking out of her
classroom to attend an afternoon meeting,” but it declines to note that she did not act
                                             5
reasonably in failing to see a wet-floor sign directly across the hallway from her
classroom door and another a few feet away. Individuals have a duty to see what is in
plain sight, including wet floor signs. See Easley v. Baker, No. M2003-02752-COA-
R3CV, 2005 WL 697525 (Tenn. Ct. App. March 24, 2005). If any re-allocation of fault
should occur in this case, it should be that Ms. Robertson was more than fifty percent at
fault.




                                               _________________________________
                                               BRANDON O. GIBSON, JUDGE




                                           6
