ELAINE FAGG and THOMAS FAGG,           )    Franklin Circuit
                                       )    No. 8818
      Plaintiffs/Appellants,           )
                                       )
VS.                                    )
                                       )
COUNTY OF FRANKLIN,                    )    Appeal No.
                                       )    01A01-9710-CV-00589
      Defendant/Appellee.              )


                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

        APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                                                               FILED
                    AT WINCHESTER, TENNESSEE
                                                  June 16, 1998
               HONORABLE THOMAS GRAHAM, CHANCELLOR
                                               Cecil W. Crowson
                                              Appellate Court Clerk

Michelle M. Benjamin, #0012377
P.O. Box 177
Winchester, Tennessee 37398
ATTORNEY FOR PLAINTIFFS/APPELLANTS

Ben P. Lynch, #003246
LYNCH, LYNCH & LYNCH
P.O. Box 310
Winchester, Tennessee 37398
ATTORNEY FOR DEFENDANT/APPELLEE


                               REVERSED AND VACATED



                                       HENRY F. TODD
                                       PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
ELAINE FAGG and THOMAS FAGG,                   )       Franklin Circuit
                                               )       No. 8818
       Plaintiffs/Appellants,                  )
                                               )
VS.                                            )
                                               )
COUNTY OF FRANKLIN,                            )       Appeal No.
                                               )       01A01-9710-CV-00589
       Defendant/Appellee.                     )



                                     OPINION

       This suit arises from the injury of a pedestrian by stepping into a hole in or near the edge

of the paved county road. The Trial Judge rendered summary judgment in favor of the county

on the ground that the county owed no duty to a pedestrian.



       The facts, as found by the Trial Judge, are:

               1)      The plaintiff, Elaine Fagg, was allegedly injured when
               she fell after tripping on a pothole located on the edge of the
               county roadway known as the UT Farm Road.

               2)     The UT Farm Road is a county maintained road
               constructed of a tar and chip surface with narrow to non-
               existent shoulders.

               3)       The Franklin County Road Department does not build
               or maintain sidewalks or areas designated for pedestrian
               traffic along this or any other county road.

               4)      The UT Farm Road is designed for vehicular traffic
               and lies in a sparsely populated area.

               5)      There are no records in the Franklin County Highway
               Department indicating any problem with the UT Farm Road
               other than a stopped culvert in an unrelated location. There
               are further no known complaints that have been registered
               regarding the subject pothole, either verbally or otherwise,
               prior to the date of plaintiff’s injury.

               6)     The pothole giving rise to the claim herein measured
               approximately twelve (12) inches wide and six (6) inches
               deep and was located on the edge of the tar and chipped
               surface. Grass was allowed to grow in and around the outside
               edge of the pothole.

               7)      Plaintiff was injured when she tripped while stepping
               off the surface to allow a vehicle to go by. (R. 148-149).



                                               -2-
Appellants Issue:

               I.     Whether the trial court erred in holding that immunity
               was not removed under T.C.A. § 29-20-203 because the
               defendant had no duty to maintain the county road in a
               reasonably safe condition for pedestrian use.


Appellee’s Issues:

               1.     Whether the trial court was correct in granting the
               defendant-appellee’s motion for summary judgment.

               2.     Whether the defendant-appellee had constructive
               and/or actual notice of any defective, unsafe or dangerous
               condition existing in the UT Farm Road as alleged as required
               by T.C.A. § 29-20-203(b).


       The record contains evidence of the following facts:

       The injury occurred on University of Tennessee Farm Road, which is a paved road of the

Franklin County public road system which is used by both vehicles and pedestrians. It has

narrow, grass covered shoulders and no sidewalks. As plaintiffs were walking along the road,

Mrs. Fagg stepped “to the side of the road,” her foot caught in a hole 12 inches wide and six

inches deep. Grass in the area was tall and had fallen across the hole and obscured it from view.

The Road Commissioner was aware of grass growing 4 or 5 feet tall on the subject road at

various times and “would not be surprised” to hear that people walked on the road in question,

but insisted that country roads were built for vehicles and not for people. He admitted that the

County had a duty to keep the grass and weeds mowed on county roads and to keep the roads in

a reasonably safe condition for vehicular travel, but not for pedestrian use.



       T.C.A. § 29-20-203 reads 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.

               (b) This section shall not apply unless constructive and/or
               actual notice to the governmental entity of such condition be
               alleged and proved in addition to the procedural notice
               required by § 29-20-302. [Acts 1973, ch. 345, § 8; T.C.A. §
               23-3309.]



                                             -3-
        The quoted statute makes no distinction between vehicular and pedestrian use of public

roads. It does require notice of a particular defect, but notice may be inferred from the facts and

circumstances of each case. The lack of a record of complaints is merely one of many

circumstances to be considered by the finder of fact.



        In Helton v. Knox County, Tenn. 1996, 922 S.W.2d 877, a motorist lost his life when he

ran his vehicle off a one-lane, single arch stone bridge built in 1895 in a hilly, sparsely inhabited

area and was little used. The approach to the bridge included a railroad crossing and two 90

degree curves. A sign on the approach read: “Warning - One Lane Bridge Ahead,” and “paddle

boards” continued the warning, and reflective paint marked the edges of the road. The only

defect alleged was the absence of guard rails which were not required when the bridge was built,

but were standard at the time of the injury. The Supreme Court held that the installation of guard

rails on a county roadway was a “discretionary function that involves public policy

consideration” and that “governmental immunity is preserved under Tenn. Code Ann. § 29-20-

205(1) as well,” citing Bowers v. City of Chattanooga, Tenn. 1992, 826 S.W.2d 427.



        Because of the wide difference between the absence of guard rails on a century old, one-

lane bridge and paved highway overgrown with vegetation hiding a pothole 12 inches wide and

6 inches deep, the quoted authority is not deemed to be determinative of the present appeal.



        It has been held that a public road authority may not be held liable for a minor variation

or “step-off” in a public road. However, no such holding has been found in reference to a

pothole six inches deep and twelve inches wide. The very size of the hole is sufficient to furnish

a reasonable inference as to the duration of the defect.



        Under the evidence summarized above, the question of whether the road in question was

maintained in a reasonably safe condition and whether the public authority had reasonable notice

of an unsafe condition were issues of fact and should not have been foreclosed by summary



                                                -4-
judgment. Bryd v. Hall, Tenn. 1993, 847 S.W.2d 208. Dooley v. Everett, Tenn. App. 1990, 805

S.W.2d 380.



       The right of the public to walk on a public road is well established. T.C.A. §§ 55-8-133-

139, prescribes the safe use of highways by pedestrians. § 55-8-138(b) refers specifically to

pedestrians where no sidewalk is provided.



       In the absence of a statute or ordinance to the contrary, a pedestrian has the same right

to use and travel upon any portion of a public highway or street at any time of the day or night.

7a Am. Jr. Automobiles and Highway Traffic, § 13 p.540.



       This Court holds that the evidence in this record is not so conclusive as to entitle the

defendant to judgment as a matter of law.



       The judgment of the Trial Court is reversed and vacated. Costs of this appeal are taxed

against the defendant. The cause is remanded for appropriate further proceedings.



                               REVERSED AND VACATED



                                                      _________________________________
                                                      HENRY F. TODD
                                                      PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


_____________________________
BEN H. CANTRELL, JUDGE


_____________________________
WILLIAM C. KOCH, JR., JUDGE

                                              -5-
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