The opinion
IN THE COURT OF APPEALS
AT KNOXVILLE FILED
August 11, 1999
Cecil Crowson, Jr.
Appellate Court
Clerk
SYLVIA MILLER, ) CAMPBELL COUNTY
) 03A01-9809-CV-00290
Plaintiff-Appellee, )
)
)
v. ) HON. CONRAD TROUTMAN
) JUDGE
)
CITY OF LAFOLLETTE, )
)
Defendant-Appellant. ) AFFIRMED AND REMANDED
JON G. ROACH OF KNOXVILLE FOR APPELLANT
DAVID A. WINCHESTER OF LAFOLLETTE FOR APPELLEE
O P I N I O N
Goddard, P.J.
This appeal from the Circuit Court of Campbell County
concerns liability under the Tennessee Governmental Tort
Liability Act. The City of LaFollette, Tennessee, the Defendant-
Appellant, appeals the award of $6,500 to Sylvia Miller, the
Plaintiff-Appellee, for flooding damage to personal property at
her residence in LaFollette.
The City presents four issues, which we restate as
follows:
1. Whether the Trial Court erred in not
apportioning fault to the Letners and their
predecessors in title, Ayres, Ltd.,
for an embankment on their property
which caused water to back up and
flood the residence of Ms. Miller.
2. Whether the Trial Court erred in
finding that the City of LaFollette
was at fault by installing drainage
tile and by allowing the property
at 401 West Beech Street to be
raised to create an embankment
which allowed for the retention of
storm water, thus causing the
flooding of Ms. Miller’s residence.
We affirm the judgment of the Trial Court.
In November 1985, John and Sue Letner1 purchased
property at 403-405 Beech Street in LaFollette from Anchor Realty
Company. Ayres, Ltd.2, which owned the property at 401 West
Beech Street, decided to place drainage tile in a portion of the
streambed that passes through its property. The City, which has
a policy of installing drainage tile on private property if the
property owner purchases the tile, recommended 48-inch tile be
placed in the streambed. Ayres purchased the tile, and the City
installed it. After the tile was installed, the property at 401
1
The Letners were defendants at trial, but are not parties to this
appeal.
2
Ayres, Ltd. was owned by Tomi Ayres and Haskel Ayres.
2
West Beech Street was filled with dirt to a depth of
approximately five feet. The City maintains that at the time it
installed the 48-inch tile on the property at 401 West Beech
Street, it was unaware of any plans to put fill material on top
of the drainage tile. Apparently, the Letners also decided to
have tile placed in the streambed across 403-405 West Beech
Street.
In 1992 the Letners purchased the property at 401 West
Beech Street from Ayres. That same year, the Letners rented the
property at 405 West Beech Street to Ms. Miller.
During late winter and early spring of 1994, the City
replaced several collapsed drainage tiles in the Central Avenue
area of LaFollette, which is upstream from Ms. Miller’s residence
on West Beech Street. Max Robinson, the public works supervisor
for the City of LaFollette and the City’s representative at
trial, testified that the City had replaced some collapsed tiles
under Central Avenue, which had experienced flooding of a couple
of feet deep on two prior occasions. The City contends that it
did not change the natural drainage of any upstream surface
waters, but concedes that the replacement of the collapsed tile
may have caused water to flow more quickly downstream than it did
during the period of time the tile was collapsed. Mr. Robinson
testified that the City did not consult with an engineer when it
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decided to replace the drainage tiles under Central Avenue nor
did it inspect the downstream drainage system before installing
the new tiles or conduct a study of the downstream effects of the
work to be done. He also acknowledged that there had not been a
flooding incident on Beech Street since 1983 or 1984 until the
one that flooded Ms. Miller’s home. Mr. Robinson also admitted
that the City has a policy of installing drainage tile on private
property, if the property owner purchases the tile.
On July 18, 1994, a severe thunderstorm struck
LaFollette, thereby sending a large quantity of water down the
drainage tile toward Ms. Miller’s residence on Beech Street. The
water overwhelmed the drainage tile and flooded Ms. Miller’s
residence, thereby damaging her car as well as her personal
property inside the residence. Ms. Miller testified that during
the approximately two years she had lived at the residence, she
had not experienced any water problems or flooding until the
flooding that occurred on July 18, 1994. No flooding occurred on
Central Avenue on this date.
The City called two expert witnesses, both licensed
professional engineers, to testify. First, Clarence Bennett
testified that the dam on the Letners' property caused the
flooding of Ms. Miller's residence. He also testified that it
would have been prudent for the City to obtain professional
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advice for the design of the structure used to replace the
collapsed tiles on Central Avenue. Second, Dr. Bruce Tschantz,
a professor of civil and environmental engineering at the
University of Tennessee, is a professional engineer in the area
of hydrology. He too stated that without the dam, there would
have been no flooding of Ms. Miller’s residence. Dr. Tschantz
also stated that the City probably should have considered the
downstream effects of its work on Central Avenue.
The Trial Court held that the Letners did not create
the problem “since the dam on Lot 401 was already constructed
when they bought the property” and that the City “caused the
problem and was at fault by installing a 48-inch tile under Lot
401 and by allowing this lot to be raised.”
First, the City of LaFollette contends that
the Trial Court failed to apportion fault to the Letners or their
predecessors in interest, Ayres, Ltd., who had erected a dam on
its property which caused the rainfall to back up and flood Ms.
Miller's residence. The City argues that the Letners not only
maintained the embankment or dam on their property but also added
fill dirt to it. It asserts that had the dam not been on the
property, the water levels would have been so low that Ms.
Miller's car and the personal property in her residence would not
have been damaged.
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Furthermore, the City argues that the Trial Court erred
in finding that the City of LaFollette was at fault for
installing a 48-inch tile under 401 West Beech Street and
allowing the level of this lot to be raised. The City asserts
that it did not permit Ayers to place fill material on its
property, arguing that "there is no proof that the City had
undertaken to regulate the actions of a private property owner in
placing fill material on his property." Also, the City maintains
that under Tennessee Code Annotated §§ 29-20-203 and 29-20-204,
immunity is removed only where a City that is shown to have
actual or constructive notice of the condition giving rise to the
injury. The City argues that it did not have notice of a
dangerous or defective condition regarding any City-owned
structure. It argues that the structures in the case sub judice
were owned by the Letners, not the city. However, the City
admits that City crews did place the tile in the streambed at the
request of the property owner.
Ms. Miller argues that the City was at fault for the
flooding damage to her personal property. She contends that the
Trial Court did consider the apportionment of fault with regard
to the Letners and "simply apportioned all of the fault to the
City of LaFollette." Furthermore, she asserts that pursuant to
Tennessee Code Annotated § 29-20-204, the City "had undertaken to
control the storm drainage system which extended from Central
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Avenue to West Beech Street where the Plaintiff resided . . . and
the City controlled the drainage system even over privately owned
lands by dictating the size of the drainage tiles to be
installed.”
In accordance with Rule 13(d) of the Tennessee Rules of
Appellate Procedure, we review the findings of fact by the trial
court de novo with a presumption of correctness unless the
evidence preponderates against the judgment of the Trial Court.
However, a presumption of correctness does not attach to the
Trial Court's conclusions of law. Ganzevoort v. Russell, 949
S.W.2d 293, 296 (Tenn. 1997).
Neither the complaint nor the amended complaint states
that this action is brought against the City pursuant to
Tennessee Code Annotated § 29-20-101, the Tennessee Governmental
Tort Liability Act. However, because this Act is the only
authority for such an action against the City, it is considered
the basis for this suit. The Tennessee Governmental Tort
Liability Act grants immunity, subject to certain statutory
exceptions, to governmental entities such as the City of
LaFollette. See Tenn. Code Ann. § 29-20-201.
Tennessee Code Annotated § 29-20-201, provides in
pertinent part:
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(a) Except as may be otherwise provided in this
chapter, all governmental entities shall be immune from
suit for any injury which may result from the
activities of such governmental entities wherein such
governmental entities are engaged in the exercise and
discharge of any of their functions, governmental or
proprietary.
****
(c) When immunity is removed by this chapter any
claim for damages must be brought in strict compliance
with the terms of this chapter.
Governmental entities are immune from liability for
discretionary acts under Tennessee Code Annotated § 29-20-205,
which provides in pertinent part:
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.
In 1992, the Tennessee Supreme Court adopted the
“planning-operational test” to determine whether an action or
inaction by a governmental entity is considered discretionary.
Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992). In
Bowers, the Court discussed the difference between planning and
operational:
If a particular course of conduct is determined after
consideration or debate by an individual or group
charged with the formulation of plans or policies, it
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strongly suggests the result is a planning decision.
These decisions often result from assessing priorities;
allocating resources; developing policies; or
establishing plans, specifications, or schedules.
On the other hand, a decision resulting from a
determination based on preexisting laws, regulations,
policies, or standards, usually indicates that its
maker is performing an operational act. Similarly
operational are those ad hoc decisions made by an
individual or group not charged with the development of
plans or policies. These operational acts, which often
implement prior planning decisions, are not
“discretionary functions” within the meaning of the
Tennessee Governmental Tort Liability Act.
Bowers, 826 S.W.2d at 431.
Another factor in determining whether the act is
operational or planning is whether the decision is the type
properly reviewable by the courts. Bowers, 826 S.W.2d at 431.
“[T]he discretionary function exception was intended to prevent
the use of tort actions to second-guess what are essentially
executive or legislative decisions involving social, political,
economic, scientific, or professional policies or some mixture of
these policies.” Doe v. Coffee County Board of Education, 852
S.W.2d 899, 907 (Tenn. Ct. App. 1992) (citations omitted).
The Trial Court based its holding on the City’s
installation of drainage tile under 401 Beech Street and the
subsequent raising of the level of the lot. Although the City of
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LaFollette had no written procedure regarding the installation of
drainage tile on private property, the evidence adduced at trial
indicated a clear policy by the City to install tile on private
property. The City would not only install the drainage tile on
private property but also would determine the size of the tile to
be installed.
Although the Trial Court mentions in its findings the
drainage from the Central Avenue area downward to the Beech
Street area, it does not specifically conclude that the
replacement of drainage tiles in the Central Avenue area
contributed to the flooding of Ms. Miller’s residence. We find,
however, that the evidence indicates that the City’s replacement
of drainage tile in the Central Avenue area contributed to the
flooding of Ms. Miller’s residence.
By applying the “planning-operational test” to the
facts of this case, we find that the City of LaFollette’s failure
to seek professional advice regarding the replacement of the
collapsed tiles in the Central Avenue area and its failure to
check the status of the drainage system downstream from the
Central Avenue area were operational decisions, not discretionary
ones. The City knew that the Central Avenue area of LaFollette
had experienced flooding on two occasions before it undertook to
replace the drainage tile in that area in the months immediately
1 0
preceding the flooding of Ms. Miller’s residence. However, the
City did not seek design advice for the replacement of tiles or
determine how such changes upstream from Ms. Miller’s residence
would affect the drainage of water downstream.
We are unpersuaded by the City’s argument that Ayres
or the Letners are responsible. The fill dirt that the City
maintains created a dam on the property at 401 West Beech Street
had been placed there several years before the flooding occurred
in 1994. The evidence indicates that no flooding occurred on
Beech Street until the replacement of the drainage tile on
Central Avenue just months before, and there was no flooding on
Central Avenue the day Ms. Miller’s residence was flooded. Ms.
Miller testified that she had not experienced any flooding
problems during the two years that she had lived at her residence
on Beech Street, and Mr. Letner testified that he had not seen
the water out of its banks before the flooding on July 18, 1994.
Moreover, Mr. Robinson, the City’s representative, testified that
no flooding had occurred on Beech Street since 1983 or 1984.
Finally, the type of question involved in this
case is based more on negligence than on social, political, or
economic considerations, which is another factor in our
determination that the City of LaFollette was not immune under
Tennessee Code Annotated § 29-20-205.
1 1
Accordingly, we find that the evidence does not
preponderate against the Trial Court’s judgment that the City of
LaFollette is responsible for the flooding damage to Ms. Miller’s
personal property at her residence.
For the foregoing reasons, the judgment of the Trial
Court is affirmed and the cause remanded for collection of the
judgment and costs below. Costs of appeal are adjudged against
the City of LaFollette and its surety.
_______________________________
Houston M. Goddard, P.J.
CONCUR:
________________________________
Herschel P. Franks, J.
________________________________
H. David Cate, Sp.J.
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