           DAVID F. BUSH,                        )
                                                 )   Williamson County Circuit
                 Plaintiff/Appellant,            )   Case No. 92530
                                                 )
           VS.                                   )
                                                 )
           BRENDA L. ALLGOOD and                 )   Appeal No.
           MERCANTILE PROPERTIES, INC.,          )   01A01-9605-CV-00207
                                                 )
                 Defendant/Appellee.             )



 FILED                        IN THE COURT OF APPEALS OF TENNESSEE
                                   MIDDLE SECTION AT NASHVILLE
 November 1, 1996
                               APPEALED FROM THE CIRCUIT COURT OF
 Cecil W. Crowson                 WILLIAMSON COUNTY, TENNESSEE
Appellate Court Clerk
                             HONORABLE HENRY DENMARK BELL, JUDGE


           William B. Bradley
           Peach Court Bldg., Suite 210
           7105 Peach Court
           P.O. Box 1223
           Brentwood, Tennessee 37024
           ATTORNEY FOR PLAINTIFF/APPELLANT


           Thomas I. Carlton, Jr.
           Daniel P. Berexa
           Cornelius & Collins
           Suite 2700
           Nashville City Center
           511 Union Street
           Nashville, Tennessee 37219
           ATTORNEY FOR DEFENDANT/APPELLEE


                                        REVERSED AND REMANDED


                                                HENRY F. TODD
                                                PRESIDING JUDGE, MIDDLE SECTION


           CONCUR:

           SAMUEL L. LEWIS, JUDGE,
           BEN H. CANTRELL, JUDGE,
DAVID F. BUSH,                                 )
                                               )     Williamson County Circuit
       Plaintiff/Appellant,                    )     Case No. 92530
                                               )
VS.                                            )
                                               )
BRENDA L. ALLGOOD and                          )     Appeal No.
MERCANTILE PROPERTIES, INC.,                   )     01A01-9605-CV-00207
                                               )
       Defendant/Appellee.                     )



                                   O P I N I O N

       The Trial Court granted summary judgement dismissing one of the defendants,

Mercantile Properties, Inc., and ordered entry of final partial judgment pursuant to T.R.C.P. Rule

54.02. Plaintiff has appealed. The remaining defendant, Brenda L. Allgood, is not involved in

this appeal.



       Plaintiff sued for personal injuries and property damages sustained in the collision of a

motorcycle operated by plaintiff and an automobile operated by Brenda L. Allgood.



       The collision occurred in Brentwood at the intersection of Chadwick Drive and Centerview

Drive, where a stop sign requires vehicles approaching the intersection on Chadwick Drive to stop

and yield the right of way to traffic on Centerview Drive. Traveling eastward on Chadwick Drive,

plaintiff entered the intersection and was struck by the Allgood vehicle traveling in a southward

direction on Centerview Drive.



       The defendant appellee, Mercantile Properties, Inc., was the owner of property at the

northwest corner of the intersection.



       The complaint alleges that before entering the intersection, plaintiff stopped, looked for

traffic on Centerview, and saw none because his vision was obstructed by vegetation on the property


                                               -2-
of Mercantile; and that he proceeded into Centerview where he was struck by the vehicle operated

by Ms. Allgood. The complaint also alleges that appellee negligently maintained its property

adjoining the intersection in violation of T.C.A. § 39-17-307 as follows:

                  Obstructing highway or other passageway. (a) A
               person commits an offense who, without legal privilege,
               intentionally, knowingly or recklessly:

                  (1) Obstructs a highway, street, sidewalk, railway,
               waterway, elevator, aisle, or hallway to which the public,
               or a substantial portion of the public, has access; or any
               other place used for the passage of persons, vehicles or
               conveyances, whether the obstruction arises from the
               person’s acts alone or from the person’s acts and the acts
               of others; or . . .

               (b) For purposes of this section, “obstruct” means to
               render impassable or to render passage unreasonably
               inconvenient or potentially injurious to persons or
               property. (Emphasis added.)



       On September 14, 1995, appellee filed a motion for summary judgment. On November 3,

1995, plaintiff filed a response to the motion for summary judgment in which, for the first time,

he relied upon Ordinances 12-103 and 11-210 of the City of Brentwood.



       The record does not disclose the date of the hearing, but the order granting summary

judgment, entered on November 14, 1995, contains a reference to the two city ordinances

mentioned in plaintiff’s response to the motion for summary judgment.



       The evidence includes the following:


       The affidavit of the vice mayor of Brentwood asserts that the paved surfaces of Centerview

and Chadwick Drives are each in the center of a 60 foot wide dedicated right of way for maintenance

of which the city has accepted and exercises responsibility and that at least 10 feet of unpaved right

of way exists on each side of both pavements.




                                                -3-
       The affidavit of Robert P. Murphy, a registered land surveyor and transportation engineer

states that he surveyed the scene of the collision, located the edges of the pavement and the edges

of the rights of way adjoining appellee’s’s property and expressed his opinion that any obstruction

to plaintiff’s vision while he was stopped at the stop sign was located on the public right of way and

not the property of appellee.



       The affidavit of Doug Jones, landscaper for the defendant-appellee, stated he mowed the

property of defendant appellee out to the pavement, but he frequently found it unnecessary to mow

a 25 or 30 foot wide strip adjacent to the pavement of Chadwick and Centerview Drive because it

had been previously mowed.



       The testimony of the defendant, Allgood, was that, as she approached the intersection she

was able to see plaintiff “sitting at the white line,” that nothing obscured her vision of plaintiff and

that she saw him move forward into the intersection, but was unable to avoid the collision, and that

there was no obstruction of her vision.



        The plaintiff testified that he stopped “behind the stop line” and then moved forward some

distance for a better view without entering the pavement of Centerview Drive. He further testified;

                Q.      What did you do once you stopped that second
                        time where you’ve marked on Exhibit 17?

                A.      I looked to the left, looked to the right, back to
                        the left.

                Q.      And to the left would be North.

                A.      (Witness nods head in the affirmative.)

                Q.      When you looked to the left the first time, did
                        you see any vehicles?

                A.      No.

                Q.      Then you looked to the right, did you see any
                        vehicles at that time?


                                                 -4-
               A.      How about when you looked to the left again?

               Q.      No.

               A.      Then you began to proceed out into the intersection.

               Q.      Correct.

               A.      Did you ever see the vehicle that Ms. Allgood was
                       driving prior to the accident?

               Q.      No. The grass was so high I couldn’t see anything
                       coming up that way.

               A.      So you never saw it before the impact.

               Q.      I saw it when I was out in the middle, you know, my
                       bike was halfway across the lane.


       On November 14, 1995, the Trial Court entered summary judgment dismissing Mercantile.



       On January 5, 1996, plaintiff moved the Trial Court for leave to amend the complaint to

allege violations of Ordinances 12-103 and 11-210 of the City of Brentwood. On January 8, 1996,

plaintiff filed the following motion:

               MOTION TO AMEND ORDER OF FINAL JUDGMENT
                   AS TO MERCANTILE PROPERTIES, INC.

                  Plaintiff moves the Court to amend the Order of Final
               Judgement as to Mercantile Properties, Inc. To allow for
               an interlocutory appeal by Plaintiff or, in the alternative,
               to order that the trial in this case be set following the final
               disposition of the appeal on the ground that it is in the best
               interests of all the parties and the Court that all matters
               be resolved in one trial rather than possibly two trials.


       On February 9, 1996, the Trial Court entered the following order:

                                        ORDER

                  Plaintiff’s Motion to Amend the Complaint and Motion
               to Amend the Court’s Order Granting Summary Judgment
               to Defendant Mercantile having come on to be heard before
               the Honorable Henry Denmark Bell, Judge, on the 29th day
               of January, 1996, and it appearing to the Court from the
               record and from arguments of counsel that Plaintiff should
               be allowed to amend the Complaint to conform to the
               record, that the Order of the Court granting Summary

                                                -5-
               Judgment to Defendant Mercantile should not be amended.

                  It is, therefore, ORDERED that:

                 1. Plaintiff’s Motion to Amend the Complaint is
               granted;

                 2. Plaintiff’s Motion to Amend the Summary
               Judgment granted to Defendant Mercantile is denied.


       On appeal, plaintiff presents a single issue as follows:

                  Do the ordinances of the City of Brentwood, which
               impose a duty on defendant Mercantile to not obstruct
               vision or view for the safety of vehicles, apply to that
               portion of landowner’s property subservient to an
               easement?


       The appellee presents an additional issue in the following form:

                 The Trial Court erred in allowing the post-judgment
               amendment to the complaint adding allegations that
               Mercantile had violated City of Brentwood ordinances.


       Surprisingly, appellant has not seen fit to reply to the issue stated and argued by appellee.



       T.R.C.P. Rule 15.02 provides in pertinent part as follows:

                  Amendments to Conform to the Evidence. When
               issues not raised by the pleadings are tried by express
               or implied consent of the parties, they shall be treated
               in all respects as if they had been raised in the pleadings.
               Such amendment of the pleadings as may be necessary
               to cause them to conform to the evidence and to raise
               these issues may be made upon motion of any party at
               any time, even after judgment.


       Appellee does not argue that it was denied a fair opportunity to litigate the effect of the

ordinance upon the rights of the parties. It appears that the issue of the effects of these ordinances

was discussed and decided by the Trial Court, and that appellee was not prejudiced by the belated

allowance of the amendment.



       The appellant insists that the Trial Court was in error in holding appellee had no duty to

                                                -6-
prevent obstruction on the dedicated right way easement.



       The summary judgment states:

                 Mercantile contends that the right of way for the two
              roadways was owned by the City of Brentwood and that
              the right of way for each road is sixty feet wide, that is to
              say, thirty feet from the center line of each road. The
              right of way dedicated to the City of Brentwood includes
              a portion of the field which is located at the northwest
              corner of the intersection of Centerview Drive and
              Chadwick Drive and exceeds the right of way a distance
              in excess of ten feet. The City of Brentwood is responsible
              for and does maintain and cut the vegetation in these right-
              of-ways including the portion of the field on the subject
              northwest corner. (Affidavit of Louis J. Baltz). The weeds
              blocking the view of the plaintiff were within the right of
              way dedicated to Brentwood and plaintiff cannot show
              that weeds beyond the right of way made any difference.
              All evidence concerns weeds which were in the right of
              way.

                Defendant Mercantile contends that the evidence does
              not show a duty owned by Mercantile in connection with
              the obstructing weeds and also that the presence of the
              weeds was not a proximate cause of the collision.

              As a answer to this contention, plaintiff exhibits
              ordinances of the City of Brentwood as follows:

                 11-210. Obstruction to vision at street intersection
              prohibited. On a corner lot within the area formed by
              the center lines joining points on such center lines at a
              distance of ninety (90) feet from their intersection, there
              shall be no obstruction to vision between a height of three
              and one-half (3-1/2) feet and a height of ten (10) feet
              above the average grade of each street at the center line
              thereof. The requirements of this section shall not be
              construed to prohibit any necessary retaining wall.

                12-103. Trees, etc., obstructing view at intersection
              prohibited. It shall be unlawful for any property owner to
              have or maintain on his property any tree, shrub, sign or
              other obstruction which prevents persons driving vehicles
              on public streets of alleys from obtaining a clear view of
              traffic when approaching an intersection. (Emphasis added)

                 It is the duty of this Court to construe these ordinances,
              if possible, in such a way as to not put them in violation of
              State law. We have seen above that the City of Brentwood
              has the duty under State law to manage its right of way
              property in such a manner as to not permit obstructions to

                                              -7-
                visibility of drivers of motor vehicles. The City cannot by
                ordinance avoid this duty by shifting it to someone else.
                Therefore the ordinances apply to owners of land adjoining
                the city’s right of way but not to the right of way itself. The
                Court concludes that the defendant Mercantile did not have
                a duty to plaintiff the cut the vegetation growing upon the
                right of way which blocked the vision of operators of motor
                vehicles on the streets of Brentwood. (Emphasis supplied.)

        This Court respectfully disagrees with the holding of the Trial Judge that, because the City

has a duty to keep its rights of way clear of obstructions, it may not impose the same duty upon

abutting property owners within its jurisdiction. The delegation of this duty does not relieve the City

of its duty, but it does impose a duty upon the abutting property owner in addition to that of the City,

so that a person injured by violation of the duty of this City and that of a property owner may have

a right of action against either or both.



        The City is not named as a defendant in this case, nor does the appellee seek apportionment

of part of the damages against the City.



        Appellee cites numerous Tennessee authorities holding that a municipality has a

nondelegable duty to maintain its rights of way. Each of said authorities relates to a duty to construct

or maintain a sidewalk. The duty to mow vegetation between the pavement and the edge of the right

of way is a distinguishable situation. None of such authorities holds that a city may not impose a

corresponding duty upon an abutting land owner, as to that part of the right of way which is not

improved and is open for use of the owner.



        Appellee cites Mispagel v. Highway & Transportation Commission, Mo. 1990, 785 S.W.2d

279, wherein the Court held that an abutting property owner could not be held liable for damages

resulting from uncut weeds absent evidence that the weeds were on that part of the property of the

owner outside of the public right of way. In the present case, the city ordinance placed a duty upon

the property owner to keep the right of way clear of obstruction.



                                                 -8-
       Appellee also cites Stevens v. Drekich, Mich. App. 1989, 443 N.W.2d 401, wherein the

owners of abutting property were held not liable for the presence of a tree within the right of way on

the theory of nuisance where the owners “had no right of possession to the area within the right of

way.” In the present case, there is no evidence that the appellee was in any way excluded from the

area between the pavement and the edge of the right of way. On the contrary, there is evidence that

appellee’s landscaper was free to, and did on occasion, mow the area in question.



       Under these circumstances the issue of liability of appellee was not a suitable subject of a

summary judgment.



       The judgement of the Trial Court is reversed and vacated, and the cause is remanded for

further proceedings. Costs of this appeal are taxed against the appellee.



                                REVERSED AND REMANDED



                                       _____________________________________
                                       HENRY F. TODD
                                       PRESIDING JUDGE, MIDDLE SECTION


CONCUR:


_____________________________________
SAMUEL L. LEWIS, JUDGE


_____________________________________
BEN H. CANTRELL, JUDGE




                                                -9-
