Alfred Carroll Jones and Betty Jones v. City of Johnson City, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

FILED

October 2, 1995

ALFRED CARROLL JONES and ) C/A NO. 03A01-9506-CV-00196

BETTY JONES, ) WASHINGTON COUNTY LAW COURT

Cecil Crowson, Jr.

) Appellate C ourt Clerk

Plaintiffs-Appellants,)

)

)

)

v. ) HONORABLE LEWIS W. MAY,

) JUDGE

)

)

)

CITY OF JOHNSON CITY, )

TENNESSEE, )

)

Defendant-Appellee. ) AFFIRMED AND REMANDED

HOWARD R. DUNBAR of DUNBAR & DUNBAR, Johnson City, for Appellants

JOHN RAMBO of HERRIN & HERRIN, Johnson City, for Appellee

O P I N I O N

Susano, J.

This suit was brought against the City of Johnson City

(Johnson City) pursuant to the Tennessee Governmental Tort

Liability Act (GTLA), T.C.A. § 29-20-101, et seq. The plaintiff,

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Alfred Carroll Jones (Jones), was injured while working at the

Towne Acres Elementary School, a facility owned and operated by

Johnson City. At the time of the injury, the school was closed

while an addition was being built to the existing structure. The

trial court granted Johnson City's motion for summary judgment,

holding that Jones expressly assumed the risk of his injury and

"as a matter of law that [Johnson City] owed no legal duty to"

Jones based on the undisputed facts. Jones and his wife, the

plaintiff Betty Jones1, appeal, raising the following issues:

1. Is Johnson City entitled to summary judgment

based upon the undisputed material facts?

2. Did Jones expressly assume the risk which

proximately caused his injuries?

I

At the time of his injury, Jones, a licensed

electrician, was employed by Alpha Electric Company, a

subcontractor of W.B. Rittenbach, Inc., the general contractor

hired by Johnson City to build the addition to the school. Jones

was the electrical foreman on the job. On July 15, 1991, Jones,

needing electrical power for a machine he was using, examined an

electrical power board in the main panel breaker box, which was

located in a janitor's closet at the school. He found a breaker

switch not in use, and upon noticing it was loose, inserted a

screwdriver into the breaker box to tighten it. Before doing

this, Jones turned off the breaker switch he was attempting to

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The wife's claim was for loss of services, companionship, consortium,

etc.

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tighten, but did not turn off the main power switch, also located

in the janitor's closet. Upon inserting his screwdriver into the

breaker box, Jones "heard something fall behind the panel and

immediately thousands of volts of electricity went through his

body," causing him serious injury.

The trial court, presented with these undisputed facts,

found that Jones had "expressly assumed the risk of injury

associated with his working on the panel box." Because we hold

that the GTLA does not remove Johnson City's sovereign immunity

under the facts of this case, we do not find it necessary to

reach the issue of whether Jones expressly assumed the risk of

his injury.2

II

In deciding whether a grant of summary judgment is

appropriate, we must determine "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." Tenn. R. Civ. P. 56.03. We take

the strongest legitimate view of the evidence in favor of the

nonmoving party, allow all reasonable inferences from that

evidence in its favor, and discard all countervailing evidence.

See Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993). If, after

applying this standard, we find that there are no genuine issues

2

Cf. Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994).

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of material fact and the moving party is entitled to a judgment

as a matter of law, we must affirm the grant of summary judgment.

In this case, as we noted earlier, the material facts

are undisputed; thus there are no genuine issues of material

fact. Johnson City, the party seeking summary judgment, has the

burden of demonstrating that it is entitled to a judgment as a

matter of law. Id. at 215. Generally, a defendant seeking

summary judgment proceeds in one of two ways: (1) by

affirmatively negating an essential element of the plaintiff's

case, or (2) by conclusively establishing an affirmative defense.

Id. at 215, n. 5. In this case, Johnson City has chosen the

second route, asserting that the GTLA does not remove

governmental immunity under these facts and that the City's

immunity therefore bars the plaintiffs' claims.

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III

Our analysis starts with the GTLA provision stating the

general rule of sovereign immunity:

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....

T.C.A. § 29-20-201(a). The GTLA then goes on to remove immunity

under certain conditions:

(a) Immunity from suit of a governmental

entity is removed for any injury caused

by the dangerous or defective condition

of any public building, structure, dam,

reservoir or other public improvement

owned and controlled by such

governmental entity.

(b) Immunity is not removed for latent

defective conditions, nor shall this

section apply unless constructive and/or

actual notice to the governmental entity

of such condition be alleged and

proved....

T.C.A. § 29-20-204.

Johnson City insists that none of its employees had

actual or constructive notice of any defect in the breaker

box, if such a defect existed. In support of this contention,

Johnson City filed affidavits from Joy Baker, risk manager for

Johnson City, and Les Story, superintendent of school

maintenance. Baker, the city's risk manager since 1981,

stated that "this is the first incident since I have been

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employed as the Risk Manager for Johnson City that resulted in

any claim or complaint associated with the breaker box."

Story, who has worked in the school maintenance department 18

years, stated that during his tenure he never received a

complaint or report of a problem associated with the breaker

box. Johnson City also filed the affidavits of Gerry Nave,

the city electrical inspector, Billy Paul, the head custodian

at the school, and three other school maintenance employees.

All of these individuals made statements essentially to the

same effect as those of Story and Baker. We find that these

affidavits, uncontroverted by the plaintiffs, establish that

if there was a defect in the breaker box, it was a latent

defective condition, and further find that Johnson City did

not have actual or constructive notice of a defect in the

breaker box.

The plaintiffs, however, insist that although

Johnson City may not have known of any defect in the breaker

box, it was aware that the box had not been inspected or

maintained since it was installed some 26 years earlier. The

plaintiffs contend that Johnson City neglected its duty to

periodically inspect the breaker box for defects, and that

failure proximately caused Jones' injury. In support of this

contention, the plaintiffs filed an affidavit from an expert,

James E. Geiger, in which the affiant stated, "[t]he ordinary

and reasonable standard of care is to periodically inspect,

clean (if necessary), tighten any loose screws or bolts (if

necessary)." The plaintiffs also point to several statements

made by Les Story and Gerry Nave which suggest that the

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procedure employed by Johnson City was not to make periodic

inspections but rather to deal with problems, such as

equipment defects, as they arose.

The GTLA speaks directly to this issue:

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:

* * *

(4) Arises out of a failure to make an

inspection, or by reason of making an

inadequate or negligent inspection of

any property;

T.C.A. § 29-20-205. Thus, the General Assembly has not seen

fit to waive governmental immunity in cases where a government

employee fails to properly inspect "any property."

We think it is clear that this case falls squarely within the

ambit of T.C.A. § 29-20-205, and Johnson City is therefore

immune from the plaintiffs' lawsuit.

The plaintiffs rely upon the case of McGaughy v.

City of Memphis, 823 S.W.2d 209 (Tenn. App. 1991), apparently

for the proposition that Johnson City should be held to have

constructive notice of any defective condition which may have

existed. The McGaughy case involved a "high powered

[electrical] line going across private property which [was]

uninsulated and ha[d] no warning signs." Id. at 214. The

trial court found that the defendant City of Memphis "had both

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actual and constructive notice that the high powered line

which was involved in the accident was dangerous under the

circumstances." Id. at 213. The McGaughy court agreed, on

the grounds that the defendant had knowledge of the fact that

the uninsulated wire was high-voltage and therefore dangerous,

and because a city employee had inspected the site in both the

year of the injury and the year prior, where it "should have

been apparent to anyone visiting the property that activities

were being conducted in close proximity to the line which

could terminate in tragedy." Id. at 215. Thus, in McGaughy,

unlike in the present case, the defendant had notice that

there was a dangerous condition present, and that there was a

high possibility of injury due to that condition, because a

city employee had observed construction activity in close

proximity to the uninsulated high-voltage wire. In the

present case, as noted earlier, there is no evidence that

Johnson City had any notice of a dangerous or defective

condition of the breaker box, nor was there any inspection, as

in McGaughy, which would or should have put it on notice of

any danger. Thus, McGaughy is of no avail to the plaintiffs

in this case.

The judgment of the trial court is affirmed and this

cause remanded to the court below for the collection of costs

assessed there. The costs of this appeal are taxed against

the appellants and their surety.

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__________________________________

Charles D. Susano, Jr., J.

CONCUR:

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Houston M. Goddard, P.J.

__________________________________

Don T. McMurray, J.

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