                 IN THE COURT OF APPEALS OF TENNESSEE

                             AT KNOXVILLE
                                                           FILED
                                                           March 7, 2000

                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk

                                            E1999-01697-COA-R3-CV
RAY GABRIELLE COX,               )    C/A NO. 03A01-9902-CV-00074
                                 )
           Plaintiff-Appellee,   )
                                 )
                                 )
                                 )
v.                               )    APPEAL AS OF RIGHT FROM THE
                                 )    ANDERSON COUNTY CIRCUIT COURT
                                 )
                                 )
ANDERSON COUNTY HIGHWAY          )
DEPARTMENT and ANDERSON COUNTY, )
TENNESSEE,                       )
                                 )    HONORABLE JAMES B. SCOTT, JR.,
           Defendants-Appellants.)    JUDGE




For Appellants                        For Appellee

DAVID A. STUART                       ROGER L. RIDENOUR
Clinton, Tennessee                    Ridenour, Ridenour & Fox
                                      Clinton, Tennessee




                           O P I N IO N




AFFIRMED IN PART

                                  1
REVERSED IN PART
REMANDED                                               Susano, J.
          In this tort action, the defendants appeal from an

award of compensatory damages capped by the trial court at

$130,000 pursuant to the Governmental Tort Liability Act

(“GTLA”).    They also seek to reverse the trial court’s decision

to assess them with discretionary costs of $3,440.98.               We affirm

all of the trial court’s judgment except the award of

discretionary costs.



            This action arises out of personal injuries sustained

by the plaintiff in a one-vehicle accident on a rural road in

Anderson County.     Ray Gabrielle Cox sued the Anderson County

Highway Department and Anderson County (collectively “the

County”), invoking provisions of the GTLA1, and claiming that the

dangerous condition of the roadway caused the accident.               After a

bench trial, the court awarded Cox $130,000 in compensatory

damages and $3,440.98 in discretionary costs, for a total award




      1
       Cox alleges that the County is liable pursuant to T.C.A. § 29-20-203
(Supp. 1999), which provides, in pertinent part, as follows:

            (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....

Cox also alleges that the County is liable pursuant to T.C.A. § 29-20-205
(Supp. 1999), which 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....

                                      2
of $133,440.98.   The County appeals, raising the following

issues:



          1. Does the County have governmental
          immunity from the claims asserted by Cox?

          2. Did the trial court correctly apportion
          fault between the County and the driver of
          the vehicle in which Cox was a guest
          passenger?

          3. Can a governmental entity be assessed
          discretionary costs if to do so would cast it
          in judgment for an amount in excess of
          $130,000, the maximum allowable award under
          the GTLA?



                                I.



          On the evening of August 16, 1993, at approximately

8:00 p.m., Cox, then 18 years of age, was a guest passenger in a

minivan being driven by 16-year-old Dusti Dawn Howard.    They were

proceeding south on Carroll Hollow Road, a rural county road

located in Anderson County.   Howard estimates that she was

driving between 20 and 30 miles per hour when her vehicle’s right

front wheel dropped off the edge of the pavement at a point where

the road in her direction curved slightly to the right.    Howard

was unable to maneuver back onto the paved surface, and, as a

consequence, she lost control of her vehicle.   The vehicle

traveled down a slope and eventually crashed into a tree

approximately 146 feet from where it left the road.



          As Howard was approaching the site of the accident, she

was proceeding downhill.   The investigating officer testified

that the accident occurred in “what they call a holler.”   He also


                                 3
stated that the roadway at that location is in a heavily-wooded

area with, in the words of the officer, “hills on both sides of

the roadway [that] blocked the sunset very early in the evening.”

He testified that the scene of the accident was dark when he

arrived there at 8:36 p.m.



            As a result of the accident, Cox suffered a fractured

vertebra, which required surgery and physical therapy.              She

testified that she had been unable to work because of her

injuries and had incurred medical expenses exceeding $131,977.



            Cox filed this action against the County, alleging that

the dangerous condition of the road and Howard’s negligent

driving,2 in combination, were the proximate cause of the

accident and her resulting injuries.          The County filed an answer,

denying that the road was in an unsafe condition and asserting

that Howard’s negligence was the sole proximate cause of the

accident.    Prior to trial, the court below granted the County’s

motion for partial summary judgment, finding, pursuant to the

GTLA,3 that the County’s liability could not exceed $130,000.



            A bench trial was held on January 13, 1999.            Cox

presented the testimony of Dr. Leighton Sissom, a consulting

engineer, who testified regarding the condition of the road at

the point where Howard left the paved surface and lost control of


      2
       Cox filed a separate action against Howard.   The parties settled that
claim prior to the trial of the instant case.

      3
       See T.C.A. § 29-20-404(a) (Supp. 1999)(“A governmental entity...shall
not be held liable for any judgment in excess of the limits of liability set
forth in [T.C.A.] § 29-20-403...”); T.C.A. § 29-20-403(b)(2)(A) (Supp. 1999)
(insurance must provide minimum coverage of $130,000 for death or bodily
injury).

                                      4
her vehicle.   He explained that at the place where the vehicle

went off the road, the pavement had narrowed by 20 inches, from

18 feet to 16 feet, 4 inches.   A diagram prepared by Dr. Sissom

shows that the pavement was 18 feet wide at a point some 22.5

feet back from where Howard’s front right wheel went off the

road.   The diagram also shows the pavement narrowing from that

maximum width of 18 feet down to a width of 16 feet, 4 inches,

where Howard’s vehicle left the road.       Dr. Sissom’s diagram,

which was admitted into evidence as an exhibit, is attached as an

appendix to this opinion.



           Dr. Sissom also observed that there was no center line

painted on the road, nor was there a white fog line on the

pavement to mark the road edge.       He stated that there were no

signs posted to warn of the sudden narrowing of the pavement.

Dr. Sissom further noted that the edge of the pavement was

crumbling, and had sunk and deteriorated from erosion, which

condition, he opined, “would tend to cause a vehicle running over

it to roll to the right” and would “make[] it more difficult to

control the vehicle.”   Dr. Sissom further testified that there

was no shoulder to the road; thus, where the pavement stopped,

there was a four to six inch drop off to the ground below, which

was a hillside that sloped at a 50 degree angle.       It was Dr.

Sissom’s testimony that as Cox’s “vehicle progressed southward it

simply ran out of pavement staying on its same course.”       He

further opined that



           [i]t would be impossible...for a driver to
           regain control of the vehicle once the wheel
           dropped off of that four to six inch drop
           off. I just don’t think it would be possible

                                  5
            for the vehicle to come back under control
            after that. It would then be aggravated by
            the slope of the roadway which would tend to
            cause the vehicle to roll to the right.



Dr. Sissom stated that, given the condition of the road, a

vehicle traveling at only 15 miles per hour would be unable to

regain control once a wheel dropped off the pavement.            Finally,

Dr. Sissom expressed his opinion as to the cause of the accident:



            My opinion is that the driver simply ran out
            of road. That the road narrowed 20 inches.
            That’s a big space. The road narrowed 20
            inches in a very short space and the
            narrowing took place where the roadway had
            sunk where the edge of the roadway, the
            shoulder had eroded away letting there be a
            major drop off. There was no warning sign
            about the narrowing of the roadway...[and]
            there was no speed limit sign also in that
            direction.

            Q.   In your expert opinion, did the driver
            of the vehicle have any responsibility in
            this collision?

            A.   Oh, of course, yes, sir.



            In its memorandum opinion, the trial court held that

Cox had sustained damages of $550,000 as a result of the

accident.    The trial court further held:



            First, this Court assigns to the Defendant,
            Dusti D. Howard,4 seventy percent (70%) of
            the legal fault of this accident. She was
            negligent in operating her vehicle so that
            the right wheel came too close to the edge of
            the road - the road was depressed and the
            edge had crumbled and she simply ran out of


     4
       Cox’s action against the County had originally been consolidated with
her action against Howard. As indicated in footnote two to this opinion,
Cox’s suit against Howard was resolved by settlement prior to trial. However,
because the County had alleged Howard’s comparative fault as a defense, the
trial court addressed the relative fault of Howard.

                                      6
            road surface. When the right wheel dropped
            and caught on the edge of the road, control
            of the vehicle was irretrievably lost because
            of the unsafe condition of the roadway and
            road edge.

            However, the County cannot escape a share of
            legal fault for those conditions neglected by
            the county - conditions that should have been
            addressed so as to prevent the entrapment of
            the vehicle. This Court finds that the
            plaintiff has carried the burden of proof as
            to the issue of waiving government immunity
            under T.C.A. 29-20-203. The legal expression
            of this finding is to find that the road was
            “defective, unsafe or dangerous.” The County
            had actual knowledge that the roadway was
            dangerous at the point where the accident
            occurred for guard rails had been recommended
            previous to the date of the accident. Guard
            rails or the failure of installing guard
            rails will not give rise to a waiver of
            governmental immunity. However, the combined
            facts of negligence issued forth by the proof
            is sufficiently convincing to conclude that
            reasonable inexpensive measures should have
            been observed by the county to warn, repair
            and prevent the dangerous condition created
            by the neglect.



The trial court assessed the remaining 30% of fault to the

County, but limited the award of compensatory damages to $130,000

in accordance with the GTLA.    After the trial, the court awarded

Cox discretionary costs in the amount of $3,440.98.     This appeal

followed.



                                 II.



            In this non-jury trial, our review is de novo upon the

record with a presumption of correctness as to the trial court’s

factual findings, unless the preponderance of the evidence is

otherwise.    Rule 13(d), T.R.A.P.; Wright v. City of Knoxville,

898 S.W.2d 177, 181 (Tenn. 1995).      The trial court’s conclusions


                                  7
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).



                                 III.



                                  A.


          The first issue on appeal is whether the County has

immunity from Cox’s claims.    The GTLA provides general immunity

to all governmental entities, removing that immunity only in

limited and specified instances.       Kirby v. Macon County, 892

S.W.2d 403, 406 (Tenn. 1994).    One of those instances is at issue

here, namely T.C.A. § 29-20-203(a), which removes a governmental

entity’s immunity from suit “for any injury caused by a

defective, unsafe, or dangerous condition of any street...or

highway....”



          Whether a particular site is “defective, unsafe, or

dangerous” for the purpose of removing governmental immunity is a

question of fact.    Coln v. City of Savannah, 966 S.W.2d 34, 45

(Tenn. 1998).    Thus, we must determine whether the evidence

preponderates against the trial court’s factual finding that the

subject road was in “a defective, unsafe, or dangerous

condition.”     See Wright, 898 S.W.2d at 181.



          In determining whether a road is in a “defective,

unsafe, or dangerous condition,” the Supreme Court has instructed

courts to “consider the physical aspects of the roadway, the



                                   8
frequency of accidents at that place in the highway and the

testimony of expert witnesses in arriving at this factual

determination.”   Helton v. Knox County, 922 S.W.2d 877, 883

(Tenn. 1996)(quoting Sweeney v. State, 768 S.W.2d 253, 255 (Tenn.

1989)).



            As previously indicated, Cox presented the testimony of

an expert on the issue of whether the subject road was in a

“defective, unsafe, or dangerous condition” at the time of the

accident.    Dr. Sissom testified that the roadway narrowed,

unexpectedly, by 20 inches and that there were no signs to warn a

motorist of this sudden narrowing, or to otherwise caution a

driver about this condition.    In addition, Dr. Sissom stated that

there were other aspects of the roadway that contributed to its

dangerous condition, i.e., the lack of a center line, the absence

of a fog line to mark the edge of the pavement, an eroding road

edge, the lack of a usable shoulder, and a drop off of four to

six inches from the pavement to the sloping hillside.



            The County argues that the road is not “defective,

unsafe, or dangerous” because there was no evidence of any prior

accidents at the site.    We reject the thrust of this argument.

Although the frequency of accidents is a consideration in

determining whether a roadway is dangerous, such evidence, or the

lack thereof, is not necessarily determinative of the issue.       See

Helton, 922 S.W.2d at 884 (“the fact of, or absence of, prior

accidents is only one element in the equation”).




                                  9
          The County also argues that the condition of Carroll

Hollow Road is not “unusual” in that there are countless other

roads in Anderson County with the same conditions.    While this

may be the case, we note that Dr. Sissom testified that he could

not recall having investigated a road “where so many problems

came to bear at the very same point.”    Even assuming that these

conditions are common to many county roads in Anderson County,

this does not make the subject road any less dangerous; nor can

the existence of these conditions on other roads in Anderson

County serve to absolve the County of its responsibility to

maintain the subject road in a safe condition.    The evidence does

not preponderate against the trial court’s factual determination

that the subject road was in a “defective, unsafe, or dangerous

condition” at the time of the accident.    See T.C.A. § 29-20-

203(a).   We base this determination solely upon the fact that the

evidence is uncontradicted that the roadway unexpectedly narrowed

by 20 inches at the site of the accident and that there was no

signage to warn of this narrowing or to otherwise caution a

driver regarding this condition.     While each of the other matters

noted by Dr. Sissom -- the lack of markings, the eroding road

edge, the lack of a usable shoulder, and the drop off of four to

six inches to the sloping hillside -- might or might not be

sufficient, singularly or in some combination, to create a

dangerous condition, these other features of the right-of-way and

the topographical and vegetative features of the area certainly

tended to make the narrowing and lack of signage more dangerous

than would have been the case in the absence of these other

conditions in this shaded “holler.”




                                10
                               B.


          The next question we must resolve is whether the County

had notice, either actual or constructive, of the dangerous

condition found by the trial court.    See T.C.A. § 29-20-203(b).

“Actual notice” has been defined 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.”    Kirby, 892 S.W.2d at 409

(quoting Texas Co. v. Aycock, 227 S.W.2d 41, 46 (Tenn.

1950)(internal quotation marks omitted)).    “Constructive notice”

has been defined as “information or knowledge of a fact imputed

by law to a person (although he [or she] may not actually have

it), because he [or she] could have discovered the fact by proper

diligence, and his [or her] situation was such as to cast upon

him [or her] the duty of inquiring into it.”    Kirby, 892 S.W.2d

at 409 (quoting Black’s Law Dictionary 1062 (6th ed.

1990)(internal quotation marks omitted)).    However, if a road was

constructed in the defective condition complained of -- and has

remained in that condition -- then no further notice, actual or

otherwise, is required; rather, the governmental entity is

charged with notice from the time of the defective construction.

See Glover v. Hardeman County, 713 S.W.2d 73, 76 (Tenn.Ct.App.

1985).



          The trial court found, in its words, that “[t]he County

had actual knowledge that the roadway was dangerous at the point

where the accident occurred for guard rails [sic] had been

recommended previous to the date of the accident.”    The County



                               11
contends that this finding is erroneous because, so the argument

goes, there is no evidence that the installation of guardrails

was recommended to the County prior to the accident.      We agree.

The evidence clearly shows that it was only after the accident

that the County received a request for the installation of

guardrails at the location of the accident.    The only

notification that the County received before the accident

concerning a “dangerous” condition on Carroll Hollow Road was a

letter, received in 1992, complaining of overgrown brush

obstructing visibility at an intersection approximately a quarter

of a mile from the accident site.    We fail to see how such a

complaint, regarding a different section of the road, not in the

vicinity of this accident, and a completely different condition,

can be construed as giving the County notice of the dangerous

condition at issue in this case, i.e., the sudden narrowing of

the road without cautionary signs.



          We do find, however, that the notice requirement of

T.C.A. § 29-29-203(b) has been satisfied in this case.      The

evidence preponderates that the road, as originally laid out, and

as subsequently paved and re-paved prior to the accident,

narrowed by 20 inches at the point where the plaintiff’s vehicle

left the paved surface.   Mike Ellis, a former Anderson County

Road Superintendent, testified that the State of Tennessee paved




                                12
Carroll Hollow Road in 1982 as a “state aid road.”5              He quoted

from a document in the County’s files:



              This was dated December 3rd, 1982. Please be
              advised that the paving was completed on 10-
              29-82 and hereby returned to Anderson
              County.6



              He was further examined on the subject of Carroll

Hollow Road as follows:



              Q And in fact, you have some relatives who
              live out there and you drove the road rather
              frequently, is that right?

              A   True.

                                  *     *     *

              Q Okay. Which relative of yours is it that
              lives out there?

              A   My grandmother.

              Q And during the time before the guardrail
              went up, how often would you say you traveled
              that road on average?

              A   Oh, I don’t know.     Twice a week.

              Q Okay. And you’ve lived in Anderson County
              all your life, is that right?

              A   Yes.



     5
         Ellis explained a “state aid road” as follows:

              A state aid is where the county has certain mileage in
              the county and the state will come in and take a
              percentage of that mileage and make rural roads state
              aid roads. And one thing it’s got to do is it’s got
              to meet a state aid road or a state road. Then they
              will evaluate the road and do the paper work and take
              it to Nashville and then they will say it was a state
              aid road. And then they will come and pave -- pay for
              paving that road.
     6
       Even if the road was paved by the state, or the paving was paid for by
the state, this does not change the fact that Carroll Hollow Road is a county
road and hence the responsibility of the County. See T.C.A. § 54-7-109
(1998).

                                        13
          Q Has your grandmother lived there your
          whole life?

          A    Yes.

          Q So, you’ve traveled that road since you
          were a child?

          A    Yes.

          Q Do you remember when the road was a gravel
          road?

          A    Vaguely.

          Q Okay. Do you remember about when it was
          paved, the very first time?

          A    No.

          Q Okay. As far as when it     was a gravel
          road, the road has not been   reconstructed
          since it was a gravel road,   it simply had an
          asphalt pavement put on it,   is that right?

          A    To my knowledge, that’s right.

          Q I mean, nobody’s regraded it, other than
          just grading the gravel, they haven’t widened
          it, they haven’t constructed shoulders, they
          haven’t done anything to change it, except
          put asphalt on it?

          A    Right.



(Emphasis added).



          Ellis’ testimony can be fairly read as indicating that

Carroll Hollow Road had narrowed at the site of the accident

going back to the time that it was originally laid out as a

gravel road.    The paving of the road, including the re-paving in

1982, “ha[dn’t] widened it.”    This testimony tends to establish

that Carroll Hollow Road as originally laid out, and as

subsequently paved and re-paved prior to the accident, narrowed

at this site from 18 feet to 16 feet, 4 inches.    Because this

dangerous condition, exacerbated by a lack of cautionary signage,

                                 14
was created by the County, we hold that the County is charged

with notice of it.    See Glover, 713 S.W.2d at 76.



          The dissent points out, as did we, that the trial court

did not predicate its finding of notice on a sub-finding that the

County had constructed Carroll Hollow Road in a “defective,

unsafe, or dangerous condition.”       See T.C.A. § 29-20-203(a).

While this is true, it is not an impediment to our decision in

this case.    We are “called upon to pass upon the correctness of

the result reached in the [t]rial [c]ourt, not necessarily the

reasoning employed to reach the result.”       Shelter Insurance

Companies v. Hann, 921 S.W.2d 194, 202 (Tenn.Ct.App. 1995)

(citing Kelly v. Kelly, 679 S.W.2d 458 (Tenn.Ct.App. 1984)).

Under Rule 36, T.R.A.P., we are directed to “grant the relief on

the law and facts to which the party is entitled or the

proceeding otherwise requires.”     The issue of notice to the

County was obviously before the trial court.       If we find that the

evidence preponderates in favor of a finding of notice, we are

compelled to grant Cox the relief dictated by such a finding,

regardless of whether we agree with the reasoning employed by the

trial court in reaching its ultimate conclusion of notice.



             The dissent seems to take the following path en route

to finding that the evidence preponderates against a finding that

the County knew or is chargeable with knowledge of the dangerous

condition -- a dangerous condition that the dissent readily

acknowledges.    First, the dissent suggests a theory of defense in

opposition to a finding of notice, i.e., that the “missing” 20

inches of pavement was once there, but is no longer there because


                                  15
it broke off and fell down the hillside immediately adjacent to

the road.    It then searches the record for evidence to

substantiate this theory of defense, but concedes that “[i]t is

impossible to tell from Dr. Sissom’s testimony, or anything else

in this record before us, to what extent the pavement had

crumbled, sunk, and deteriorated from erosion.”    Despite this

lack of evidence, the dissent proceeds to find that the evidence

preponderates against a finding that the County had the requisite

notice.   In effect, it takes an unknown -- how much, if any, of

the “missing” 20 inches of pavement fell off -- and concludes

that this unknown, this possibility as it were, is sufficient to

offset the positive testimony of the former Anderson County Road

Superintendent indicating that the road as originally laid out

and as later paved was accomplished in such a way as to present

the narrowing roadway that we all agree was a dangerous

condition.    In our judgment, the record supports a finding that

the 20 inches of pavement was never there and that is why it is

“missing.”    When there is a reasonable explanation for the

narrowing, why should we engage in speculation to upset the trial

court’s judgment of liability under the GTLA?



            There is no evidence in the record, direct or

circumstantial, that the 20 inches of pavement width was once

there, but, at some unknown time in the past, mysteriously

disappeared, apparently down the side of the hill.    There was no

testimony at trial establishing that any portion of the pavement

had ever broken off, i.e., become disconnected from the roadway.

Furthermore, no one testified that sections of asphalt pavement

were found on or at the bottom of the hillside slope.      The


                                 16
photographs in the record reflect a relatively straight edge of

pavement at the point where the vehicle’s right front wheel left

the paved area, rather than the jagged edge that might be

expected from the loss of some length of 20 inches of pavement

width.



          There was no testimony from Dr. Sissom to the effect

that any pavement had broken off.    His testimony and the

photographs in the record simply indicate that the erosion found

by him had caused roughly parallel lines to appear in the edge of

the asphalt pavement, a condition that, in turn, caused the edge

of the pavement to slope to the right.    It is obvious, from the

context of his testimony, that this is the condition that he was

describing when he said the pavement edge was “crumbling.”       To

say that the pavement at its edge is cracked and “sloping” is not

the same as saying that some part of it has broken off.



          We find nothing to support the dissent’s position with

respect to notice; certainly, in our judgment, there is not

enough to compel a finding of a preponderance.



                               IV.



          In summary, the evidence does not preponderate against

the trial court’s basic finding, i.e., that the road was in a

“defective, unsafe, or dangerous condition.”     Moreover, the

County is charged with notice because the road as originally

constructed and as originally paved and re-paved over time, all

prior to this accident, was in a dangerous condition.     Thus, we


                               17
find and hold that the County is liable to Cox pursuant to the

waiver of immunity found in T.C.A. § 29-20-203.7



                                     V.



            Next, the County argues that the trial court’s

apportionment of fault –- 70% to Howard and 30% to the County –-

is erroneous.     The County contends that such an apportionment is

not supported by the evidence and that the trial court should

have apportioned 100% of the fault to Howard.



            A trial court has considerable latitude in allocating

fault between or among culpable parties.          Wright v. City of

Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995).           We review a trial

court’s allocation of fault with a presumption of correctness,

unless the preponderance of the evidence indicates that the trial

court’s allocation was “clearly erroneous.”           Id.; see also Rule

13(d), T.R.A.P.



            Dr. Sissom’s testimony establishes that there were two

causes of this accident: the negligent driving of Howard and the

unsafe condition of the road.        Upon reviewing all of the evidence

presented to the trial court, we cannot say that the

preponderance of the evidence is such as to compel a finding by

us that the trial court’s allocation of 30% of the fault to the

County is “clearly erroneous.”        Wright, 898 S.W.2d at 181.




     7
       Because we have determined that immunity is removed under T.C.A. § 29-
20-203, we do not deem it necessary to reach the parties’ arguments concerning
the applicability of T.C.A. § 29-20-205.

                                      18
                                 VI.



          The County also appeals the trial court’s award of

discretionary costs to Cox.    The County argues that an award of

discretionary costs cannot be combined with an award of

compensatory damages, if to do so causes the total award to the

plaintiff to exceed the $130,000 limit set forth in T.C.A. § 29-

20-404(a).   That statutory provision prohibits a judgment against

a governmental entity “in excess of the limits of liability set

forth in [T.C.A.] § 29-20-403,” i.e., $130,000.     We find and hold

that by awarding Cox discretionary costs in addition to

compensatory damages of $130,000, the trial court violated

T.C.A. § 29-20-404(a).    See Erwin v. Rose, 980 S.W.2d 203, 209-10

(Tenn.Ct.App. 1998).     In Erwin, we reversed an award of post-

judgment interest because when that award was added to the award

of compensatory damages, the total judgment exceeded the $130,000

limit.   We held in Erwin that the add-on for post-judgment

interest impermissibly caused the judgment to exceed the

statutory maximum of $130,000.     See id.   We find that the

rationale of Erwin also applies to the facts of this case.      Here,

the award of discretionary costs, when added to the award of

compensatory damages, creates a judgment in favor of Cox that

exceeds the $130,000 limit.     There is nothing in T.C.A. §§ 29-20-

404(a) and 29-20-403 to indicate that an award of discretionary

costs is an exception to the absolutely-stated monetary

limitation of the GTLA.     Whether an award of discretionary costs

and/or post-judgment interest should be an award separate and

apart from, and not subject to the $130,000 limitation of the

GTLA, is a policy decision properly left to the judgment of the


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General Assembly and not to the courts.    As we understand the

relevant statutes, the legislature has decided that all awards to

the plaintiff are subject to the one limitation of $130,000.



          By awarding discretionary costs to Cox, the trial court

held the County “liable in excess of the limits of liability set

forth in [T.C.A.] § 29-20-403.”    See id at 210 (quoting T.C.A. §

29-20-404(a)).   This it could not do.    We therefore reverse the

award of discretionary costs in this case.




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                                VII.



            For the foregoing reasons, the judgment of the trial

court awarding compensatory damages of $130,000 to Cox is

affirmed.    The judgment of the trial court awarding discretionary

costs to Cox is reversed.    Costs on appeal are taxed to the

appellants.    This case is remanded to the trial court for the

entry of an appropriate order, consistent with this opinion, and

for the enforcement of the judgment of $130,000 against the

County and for collection of costs assessed below, all pursuant

to applicable law.



                                       __________________________
                                       Charles D. Susano, Jr., J.

CONCUR:



____________________________
Houston M. Goddard, P.J.



(Separate Dissenting Opinion)
D. Michael Swiney, J.




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