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§31.2 Constructive Notice of Defective Condition

The Case: Hawks v. City of Westermoreland, 960 S.W.2d 10 (Tenn. 1997).

The Basic Facts: Plaintiffs' were owners of a home which suffered extensive damage in a fire, brought suit against the Defendant city under the Governmental Tort Liability Act (GTLA). Plaintiffs alleged that their home suffered extensive damage because firefighters could not open fire hydrants sooner because underground valves had been closed, rendering the hydrants inoperable.

The Bottom Line:

  • "The primary issue in this appeal is whether the City of Westmoreland had 'constructive notice' of the dangerous and defective condition of the fire hydrants which resulted in the total fire loss of the home of the plaintiffs, Tracey and Dale Hawks." 960 S.W.2d at 11.
  • "Under Tenn. Code Ann. § 29-20-204, the Legislature specifically made the removal of governmental immunity conditional upon a plaintiff's allegation and proof that the governmental entity knew or should have known of the dangerous or defective condition which caused the plaintiff's injury. Smith v. City of Covington, [734 S.W.2d 327, 329 (Tenn. Ct. App. 1985)]. In other words, a plaintiff must allege and prove that the governmental entity had either actual or constructive notice of the dangerous or defective condition. Since the parties in this case have agreed that the City did not have actual notice, we must determine whether the lower courts erred in concluding that the City had constructive notice of the closed valves and inoperable fire hydrants." Id. at 15.
  • "'Constructive notice' has been defined by this Court as ''information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.'' Kirby v. Macon County, 892 S.W.2d 403, 409 (Tenn. 1994), quoting [Black's Law Dictionary, 1062 (6th ed. 1990)]. Applying that definition, a governmental entity will be charged with constructive notice of a fact or information, if the fact or information could have been discovered by reasonable diligence and the governmental entity had a duty to exercise reasonable diligence to inquire into the matter. Applying that rule to the circumstances of this case, it is clear that the lower courts correctly charged the City of Westmoreland with constructive notice of the closed valves and inoperable fire hydrants." Id.
  • "The City contends that basing the finding of constructive notice upon its failure to inspect the hydrants is error because governmental immunity is not waived for injuries arising 'out of a failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property.' Tenn. Code Ann. § 29-20-205(4) (1980 Repl. & Supp. 1997). We disagree. Section 205(4) provides immunity from suit when a governmental entity negligently fails to discharge an existing duty to inspect property not owned by the City, and thereafter, injuries arise from dangerous or defective conditions on such property which would have been discovered had the governmental entity conducted an adequate inspection. In evaluating whether a plaintiff may establish constructive notice under Section 204 by proof that a governmental entity failed to adequately discharge its duty to inspect, we are not bound by Section 205(4) which provides immunity from suit for injuries resulting from 'a failure to make an inspection, or by reason of making an inadequate inspection.' Any authority to the contrary is hereby overruled.FN5
    FN5 Jones v. City of Johnson City, [917 S.W.2d 687 (Tenn. Ct. App. 1995)]; Mowdy v. Kelly, [667 S.W.2d 489 (Tenn. Ct. App. 1983)]."
    Id. at 16.

Recent Cases: 

Kee v. City of Jackson, No. W2013-02754-COA-R3-CV, 2015 WL 1510802 (Tenn. Ct. App. March 30, 2015) (city was liable under GTLA for injury on bridge where plaintiff showed that bridge was in dangerous condition and city had assigned employees to check its condition, but checks were random and sporadic); Barkley v. Shelby County Board of Educ., No. W2014-00417-COA-R3-CV, 2015 WL 1275415 (Tenn. Ct. App. March 18, 2015) (no liability in premises liability action under GTLA where plaintiff failed to prove actual or constructive notice of allegedly dangerous condition); Merrell v. City of Memphis, No. W2013-00948-COA-R3-CV, 2014 WL 173411 (Tenn. Ct. App. Jan. 16, 2014) (verdict for defendant affirmed where plaintiff offered no proof of actual notice of pothole that caused accident and no proof that city was aware that road was generally unsafe or presented a dangerous condition or that particular pothole was a recurring condition); Huskey v. Rhea County, No. E2012-02411-COA-R3-CV, 2013 WL 4807038 (Tenn. Ct. App. Sept. 10, 2013) (absence of prior injuries does not preclude findings of a dangerous condition or foreseeability in a premises liability case); Bivins v. City of Murfreesboro, No. M2011-00634-COA-R3-CV, 2011 WL 6916764 (Tenn. Ct. App. Dec. 14, 2011) (remanding for findings of fact to support trial court’s conclusion that dangerous condition existed); Bivins v. City of Murfreesboro, No. M2009-01590-COA-R3-CV, 2010 WL 2730599 (Tenn. Ct. App. July 9, 2010) (reversing dismissal of dangerous roads case finding that City had notice that portions of road were dangerous and City’s argument that it did not have notice of prior accidents at exact location of wreck was not sufficient to support dismissal solely on grounds of lack of notice).

Petty v. City of White House , No. M2008-02453-COA-R3-CV, 2009 WL 2767140 (Tenn. Ct. App. Aug. 31, 2009) (upholding trial court's finding that governmental immunity had been removed since defendant city had constructive notice of dangerous condition of its property); Champlin v. Metropolitan Government of Nashville , No. M2007-02158-COA-R3-CV, 2009 WL 1065937 (Tenn. Ct. App. Apr. 20, 2009) (affirming summary judgment finding sidewalk inventory prepared for defendant city to identify Americans with Disabilities Act violations did not detail that any sidewalk constituted a "defective, unsafe or dangerous condition" to hold defendant city liable under the Governmental Tort Liability Act); Condra v. Bradley County, No. E2007-01290-COA-R3-CV, 2009 WL196020 (Tenn. Ct. App. Jan. 28, 2009) (reversing summary judgment finding defendant county did not affirmatively show a lack of actual or constructive notice of the allegedly dangerous condition at intersection, and did not submit affidavit or other evidence to show that its maintenance of the intersection was a discretionary function); Halliburton v. Town of Halls, 295 S.W.3d 636 (Tenn. Ct. App. 2008) (affirming trial court finding that defendant governmental entity was immune from suit for common law nuisance under Tennessee Governmental Tort Liability Act (GTLA) and finding no liability under GTLA for dangerous condition finding no notice); Brown v. Chester County School District, No. W2008-00035-COA-R3-CV, 2008 WL 5397532 (Tenn. Ct. App. Dec. 30, 2008) (reversing summary judgment finding plaintiff submitted sufficient evidence to raise issue of material fact as to whether school district had notice of a dangerous or defective condition).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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