Charles M. Flagg, Jr. v. Hudson Construction Company

05/28/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 1, 2018

CHARLES M. FLAGG, JR. v. HUDSON CONSTRUCTION COMPANY ET

AL.

Appeal from the Circuit Court for Polk County

No. 13-CV-93 Lawrence Howard Puckett, Judge

___________________________________

No. E2017-01810-COA-R3-CV

___________________________________

A motorcyclist sustained severe injuries in an accident on a recently paved portion of a

state maintained highway. Alleging that his accident was caused by loose gravel on the

highway from the recent paving project, the motorcyclist filed separate actions against

the state contractor who resurfaced the state highway and the State of Tennessee. The

two actions were consolidated in the circuit court for discovery and trial. Both

defendants moved for summary judgment arguing that the plaintiff could not prove that

the gravel came from the paving project or that the defendants had notice of the gravel

before the accident. The state contractor also argued that it was discharged from liability

under the State Construction Projects Liability Act. See Tenn. Code Ann. § 12-4-503

(2011). The trial court initially denied the motions. But after the defendants filed

motions to alter or amend based on new evidence, the court reversed its decision and

granted the defendants summary judgment on all claims. The plaintiff appealed. Upon

review, we conclude that the trial court erred in excluding lay witness opinion testimony

and in ruling that expert proof was necessary to determine the source of the gravel.

Taking the strongest legitimate view of the evidence in favor of the nonmoving party, we

conclude that the plaintiff demonstrated genuine issues of material fact precluding

summary judgment. So we reverse.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which THOMAS R.

FRIERSON II and ARNOLD B. GOLDIN, JJ., joined.

John H. Templeton and Richard A. Schulman, Chattanooga Tennessee, for the appellant,

Charles M. Flagg, Jr.

P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Hudson Construction

Company.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor

General, and Peako A. Jenkins, Assistant Attorney General, for the appellee, State of

Tennessee.

OPINION

I.

In July 2012, the Tennessee Department of Transportation (“TDOT”) contracted

with Hudson Construction Company to resurface a section of State Highway 315 in Polk

County, Tennessee. The project involved an initial application of a layer of rock chips

and adhesive material to fill in cracks in the road followed by a thin layer of

microsurfacing for a smoother driving surface. As with all state road construction

projects, a TDOT employee was onsite throughout the project to supervise the work. See

Tenn. Code Ann. §§ 54-1-126, 54-5-120 (2008).

On October 16, Hudson Construction finished application of the microsurfacing

material. The contractor then inspected the road in preparation for the final step of the

project, permanent striping.1 Hudson Construction or a subcontractor periodically

cleaned excess gravel and debris from the road throughout the paving process. But after

completing the microsurfacing, the contractor only cleaned those portions of the road that

it deemed necessary for the permanent striping to adhere properly. Hudson Construction

then left the work site. On October 16 and 17, a subcontractor applied the permanent

stripes.

On October 19, after receiving notice from the onsite inspector that the work was

finished, Billy Curtis, TDOT’s project supervisor, inspected the completed work. He

looked for excess gravel, overall cleanliness, the integrity of the permanent striping, and

whether the resurfacing complied with the plans and specifications in the contract.

Mr. Curtis explained that, when inspecting road construction projects, he typically drove

through the construction zone, only stopping and exiting his vehicle when he deemed it

appropriate. He found no problems with this project. So he notified Hudson

Construction that same day that the work was acceptable and the road construction signs

could be removed.

1

Throughout the project, temporary stripes were painted on the roadway on a daily basis.

Permanent stripes were applied at the end of the project using a process called thermoplasty, which

produced light-reflective road markings.

2

On October 25, 2012, Charles M. Flagg, Jr. and a passenger, Debra Taylor, were

involved in a motorcycle accident on a recently paved portion of State Highway 315.

According to Mr. Flagg, his rear tire slid on a patch of loose gravel when he was

approaching a curve in the road, causing him to lose control and crash. Although

Ms. Taylor sustained only minor injuries, Mr. Flagg was transported to an area hospital

for treatment of more serious injuries.

Mr. Flagg filed a complaint in the Circuit Court for Polk County, Tennessee,

against Hudson Construction for breach of contract, negligence, and defective

construction. Mr. Flagg also filed a claim against the State of Tennessee in the

Tennessee Claims Commission, asserting that the State had negligently inspected and/or

maintained the state highway and failed to remedy a known dangerous condition on the

highway. See Tenn. Code Ann. § 9-8-307(a)(1)(I), (J) (Supp. 2018). After the Claims

Commission transferred the claim against the State to the circuit court, the two actions

were consolidated for purposes of discovery and trial. See id. § 9-8-404(b) (2012).

Hudson Construction and the State filed separate motions for summary judgment

challenging Mr. Flagg’s ability to establish essential elements of his claims. The

contractor also argued that it was discharged from liability under the State Construction

Projects Liability Act. See id. § 12-4-503 (2011). In response, Mr. Flagg filed several

lay witness affidavits, pictures of the accident scene, and portions of the road

construction contract. The trial court initially denied the defendants’ motions based on

multiple genuine issues of material fact. In doing so, the court relied upon “compelling”

pictorial evidence. According to the court, the pictures showed a “spotty” permanent

white line from which it would be reasonable to infer that “either the surface of the road

had loose gravel on it when it was painted (striped) with the white paint or the surface

material, due to defect in construction, gave way after it was painted.”

The State filed a motion to alter or amend the court’s ruling based on new

evidence. The State submitted additional photographs of the accident scene showing a

solid white line and an explanatory affidavit from Mr. Curtis. Hudson Construction also

moved to alter or amend the court’s ruling relying on the new evidence.

After reviewing the new evidence, the trial court determined that the permanent

white line was solid rather than spotty. The court then re-evaluated its previous ruling

based on the amended finding. The court excluded opinion testimony in Mr. Flagg’s lay

witness affidavits, ruling that such testimony should come from an expert. Based on the

remaining evidence, the court found that Mr. Flagg could only prove that gravel was on

the road October 18 and the day of the accident. Because Mr. Flagg could not prove that

the gravel on the day of the accident came from the paving job or that the defendants had

notice of the gravel before the accident, the court granted summary judgment to the

defendants on all claims. This appeal followed.

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II.

Summary judgment may be granted only “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. 56.04. The party moving for summary

judgment has “the burden of persuading the court that no genuine and material factual

issues exist and that it is, therefore, entitled to judgment as a matter of law.” Byrd v.

Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If the moving party satisfies its burden, “the

nonmoving party must then demonstrate, by affidavits or discovery materials, that there is

a genuine, material fact dispute to warrant a trial.” Id.

In this case, the party moving for summary judgment does not bear the burden of

proof at trial. Thus, the burden of production on summary judgment could be satisfied

“either (1) by affirmatively negating an essential element of the nonmoving party’s claim

or (2) by demonstrating that the nonmoving party’s evidence at the summary judgment

stage is insufficient to establish the nonmoving party’s claim or defense.” Rye v.

Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). Satisfying

this burden requires more than a “conclusory assertion that summary judgment is

appropriate,” rather the movant must set forth specific material facts as to which the

movant contends there is no dispute. Id.

If a motion for summary judgment is properly supported, the nonmoving party

must then come forward with something more than the allegations or denials of its

pleadings. Id. at 265. The nonmoving party must “by affidavits or one of the other

means provided in Tennessee Rule 56, ‘set forth specific facts’ at the summary judgment

stage ‘showing that there is a genuine issue for trial.’” Id. (quoting Tenn. R. Civ. P.

56.06).

A trial court’s decision on a motion for summary judgment enjoys no presumption

of correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008);

Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary

judgment decision as a question of law. Martin, 271 S.W.3d at 84; Blair, 130 S.W.3d at

763. Accordingly, we must review the record de novo and make a fresh determination of

whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have

been met. Eadie v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d

at 763.

A. ADMISSIBILITY OF MR. FLAGG’S AFFIDAVITS

In an effort to show a genuine issue for trial, Mr. Flagg filed affidavits from

Donald Franke and Anna and Kristen DeLee. Donald Franke, a fellow motorcycle

enthusiast, had a motorcycle accident in the same location as Mr. Flagg on October 18.

4

According to Mr. Franke, he crashed his motorcycle after encountering an unexpectedly

large amount of loose gravel in his lane of travel. Anna and Kristen DeLee, Mr. Flagg’s

granddaughters, visited the site of Mr. Flagg’s accident a week after the accident and took

pictures of gravel on the road. All three witnesses described the gravel they saw as the

same color and consistency as the new asphalt and opined that it “appeared to be from the

paving job.”

The defendants argued that only a paving expert could accurately determine the

source of the gravel. Todd Nance, Hudson Construction’s project manager, had worked

in the paving industry for 25 years. He described the size and type of rock chips used in

the paving process and the steps the contractor took to ensure that all excess gravel was

removed from the road. Based on his knowledge and experience, he maintained that the

gravel in the pictures did not look like the type or size of stone used during the paving

project.

The trial court excluded the testimony that the gravel “appeared to be from the

paving job” as inadmissible lay opinion testimony, ruling that “[t]his type of testimony

should come from an expert.” See Tenn. R. Evid. 701, 702. Evidence, including the

substance of affidavits, filed in “support or to oppose a motion for summary judgment

must be admissible.” Shipley v. Williams, 350 S.W.3d 527, 564-65 & n.12 (Koch, J.,

concurring in part and dissenting in part); see Tenn. R. Civ. P. 56.06. We review the trial

court’s decision on the admissibility of evidence for an abuse of discretion. Shipley, 350

S.W.3d at 552. An abuse of discretion occurs where the court “appl[ies] an incorrect

legal standard or reach[es] an illogical or unreasonable decision that causes an injustice to

the complaining party.” White v. Beeks, 469 S.W.3d 517, 527 (Tenn. 2015), as revised

on denial of reh’g, (Aug. 26, 2015).

1. Expert Testimony

Whether expert testimony is necessary depends on the subject matter of the

inquiry. Kinley v. Tenn. State Mut. Ins. Co., 620 S.W.2d 79, 81 (Tenn. 1981). If an

ordinary person can understand the subject matter without the aid of specialized

knowledge or experience, expert testimony is not required. Lawrence Cty. Bank v.

Riddle, 621 S.W.2d 735, 737 (Tenn. 1981).

For example, no expert testimony was required to establish the standard of care

applicable to a construction contractor who left a trench open during several days of

heavy rain while working on a public utility project. See id. at 736-37. Similarly, expert

testimony was unnecessary to determine whether a road contractor had returned roads to

their pre-excavation condition. Cocke Cty. Bd. of Highway Comm’rs v. Newport Utils.

Bd., 690 S.W.2d 231, 235 (Tenn. 1985). And our court has held that a jury could

determine “whether it was negligent to leave the metal end of a guardrail exposed to

approaching traffic” without expert testimony. Usher v. Charles Blalock & Sons, Inc.,

5

339 S.W.3d 45, 61-62 (Tenn. Ct. App. 2010); see also Steele v. Primehealth Med. Ctr.,

P.C., No. W2015-00056-COA-R3-CV, 2015 WL 9311846, at *6 (Tenn. Ct. App. Dec.

22, 2015) (concluding that expert testimony was unnecessary to determine whether a

sidewalk or wheelchair ramp was unreasonably dangerous); Wilson v. Monroe Cty., 411

S.W.3d 431, 440 (Tenn. Ct. App. 2013) (holding that a jury could decide whether an

ambulance attendant was negligent in not locking stretcher in place based on common

experience).

We conclude that expert testimony is not necessary to determine whether the

gravel on the road came from the paving project. Gravel and asphalt paving are familiar

concepts in our society. And an ordinary person can comprehend the physical

characteristics of gravel and the mechanics of the paving process. A juror may credit

Mr. Nance’s opinion as to the source of the gravel over the opinions of the lay witnesses

based on his superior knowledge of and experience with paving. But that does not mean

that expert testimony is required. “The mere availability of expert proof does not give

rise to a corresponding obligation that it be used.” Miller v. Willbanks, 8 S.W.3d 607,

615 (Tenn. 1999).

2. Lay Opinion Testimony

Tennessee Rule of Evidence 701 governs the admission of lay opinion testimony.

Tenn. R. Evid. 701. Although Tennessee courts traditionally limited the use of lay

opinions, Rule 701 does not take such a restrictive approach. See State v. Sparks, 891

S.W.2d 607, 613 (Tenn. 1995) (discussing previous law). Similar to its federal

counterpart, our rule “reflects the trend in favor of allowing lay opinion testimony.” State

v. Sweeney, No. 2016-02372-CCA-R3-CD, 2018 WL 1559973, at *7 (Tenn. Crim. App.

Mar. 29, 2018), perm. app. denied, (Tenn. July 18, 2018). To be admissible, lay opinion

testimony must be “(1) rationally based on the perception of the witness and (2) helpful

to a clear understanding of the witness’s testimony or the determination of a fact in

issue.” Tenn. R. Evid. 701(a).

The first requirement is that the opinion be based on first-hand knowledge or

observation. See Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 711 (Tenn. Ct. App. 1999);

Fed. R. Evid. 701 advisory comm. notes to 1972 proposed rules. In this respect, Rule 701

essentially mirrors the personal knowledge requirement in Rule 602. See Tenn. R. Evid.

602 advisory comm’n cmt. Personal knowledge may stem from the witness’s educational

background or practical experience. See Payne v. CSX Transp., Inc., 467 S.W.3d 413,

445-46 (Tenn. 2015). “Absolute certainty” is not required, but the opinion may not be

based on “mere speculation.” State v. Land, 34 S.W.3d 516, 529 (Tenn. Crim. App.

2000) (discussing personal knowledge requirement in Tennessee Rule of Evidence 602).

The trial court’s task is to determine whether the witness “had a sufficient opportunity to

perceive the subject matter about which he or she is testifying.” Id.

6

The second requirement, helpfulness, is a relatively low bar. It is designed to

exclude “meaningless assertions which amount to little more than choosing up sides.”

Fed. R. Evid. 701 advisory comm. notes to 1972 proposed rules. Otherwise, Rule 701

presumes “the natural characteristics of the adversary system” will expose any

weaknesses in the opinion. Id.

Although not expressly stated in the Tennessee rule, our courts will not permit lay

witnesses to provide opinion testimony that is otherwise admissible under Rule 701 if

that opinion is based on “scientific, technical, or other specialized knowledge.” State v.

Benesch, No. M2015-02124-CCA-R3-CD, 2017 WL 3670196, at *24 (Tenn. Crim. App.

Aug. 25, 2017); see also Fed. R. Evid. 701 advisory comm. notes to 2000 amendments

(explaining that Federal Rule 701 was amended to specifically exclude lay opinion

testimony based on scientific, technical or other specialized knowledge within the scope

of Rule 702). “The distinction between an expert and a non-expert witness is that a non-

expert witness’s testimony results from a process of reasoning familiar in everyday life

and an expert’s testimony results from a process of reasoning which can be mastered only

by specialists in the field.” State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992).

We conclude that the proffered lay opinion testimony is admissible. The opinions

are based on personal observation of the gravel and previous experience with newly

paved roads. The opinions have a rational basis—the gravel’s color and consistency.

And the testimony is helpful in understanding what the witnesses observed and in

determining the source of the gravel. The defendants’ objections go to the weight of the

testimony, not admissibility. The validity of these witnesses’ opinions can be tested at

trial. See Kim v. Boucher, 55 S.W.3d 551, 556 (Tenn. Ct. App. 2001) (concluding that

lay witness testimony that car was traveling fast was admissible even though witness was

fourteen years old and had never driven a car).

Having decided that expert testimony was not required and the lay witness

opinions were admissible, we must determine whether genuine issues of material fact

preclude the grant of summary judgment. See Tenn. R. Civ. P. 56.04. In so doing, we do

not “weigh” the evidence or substitute our judgment for that of the trier of fact. Martin,

271 S.W.3d at 87; Byrd, 847 S.W.2d at 211. Instead, we “take the strongest legitimate

view of the evidence in favor of the nonmoving party.” Byrd, 847 S.W.2d at 210. When

considering a motion for summary judgment, courts grant “all reasonable inferences in

favor of [the nonmoving party] and discard all countervailing evidence.” Id. at 210-11.

“[I]f there is a dispute as to any material fact or any doubt as to the conclusions to be

drawn from that fact, the motion must be denied.” Id. at 211.

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B. HUDSON CONSTRUCTION

Mr. Flagg asserted both negligence and breach of contract claims against Hudson

Construction.2 A negligence claim requires proof of five elements: “(1) a duty of care

owed by defendant to plaintiff; (2) conduct below the applicable standard of care that

amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5)

proximate, or legal, cause.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

Hudson Construction challenged Mr. Flagg’s ability to prove both a duty of care and a

breach of that duty.

1. Duty of Care

Hudson Construction concedes that it owed a duty of care to motorists such as

Mr. Flagg during construction. But the contractor argues that its responsibility ended

once the State accepted the work. See Tenn. Code Ann. §§ 12-4-501 to -503 (2011). All

work on state road construction projects is “subject to the inspection, approval, and

acceptance” of TDOT. Id. § 54-5-120. Under the State Construction Projects Liability

Act, the State’s acceptance of a state contractor’s work relieves the state contractor from

liability for negligence claims arising from that work as long as the work was performed

in accordance with the applicable plans and specifications.3 Id. § 12-4-503. It is

undisputed that Hudson Construction’s work was performed as a state contractor on a

state construction project. See id. § 12-4-502(3), (5). But Mr. Flagg maintains that

material factual disputes exist as to when the State accepted the work and whether the

work complied with the applicable plans and specifications.

a. Acceptance of the Work

Acceptance is defined in the Act as “notification by an authorized officer or

employee of the state that the work completed has been in accordance with the terms and

conditions of the state contract.” Id. § 12-4-502(1). Hudson Construction’s contract

2

Although the complaint alleged three causes of action against Hudson Construction, we

conclude that the defective construction claim is no more than a restated negligence claim.

3

Specifically, the Act provides:

Upon acceptance by the state of a state contractor’s work, provided that such state

contractor’s work is done in accordance with the plans and specifications, such state

contractor is discharged from all liability to any party by reason of its lack of ordinary

care in the performance of, or failure to perform, such work on such state construction

project.

Tenn. Code Ann. § 12-4-503.

8

incorporated TDOT’s Standard Specifications for Road and Bridge Construction. The

acceptance provision specified:

Upon due notice from the Contractor of presumptive completion of the

entire project, the Engineer will make an inspection. If all construction

provided for and contemplated by the Contract is found to be completed to

his satisfaction, then that inspection shall constitute the final inspection and

the Engineer will make the final acceptance and notify the Contractor in

writing of his acceptance as of the date of the final inspection.

If, however, the inspection discloses any work, in whole or in part, as being

unsatisfactory, the Engineer will give the Contractor the necessary

instructions for correction of same, and the Contractor shall immediately

comply with and execute such instructions. Upon correction of the Work,

another inspection will be made which shall constitute the final inspection,

provided the Work has been satisfactorily completed. In such event, the

Engineer will make the final acceptance and notify the Contractor in

writing of this acceptance as of the date of final inspection.

Hudson Construction presented evidence that the State accepted its work on

October 19. Mr. Curtis, TDOT’s project supervisor, testified that he was authorized to

approve the work. After receiving notice of presumptive completion of the project, Mr.

Curtis conducted an inspection. Finding no problems, on October 19, he notified Hudson

Construction that the work was satisfactory. Almost two years later, the State sent

Hudson Construction written notice of completion, which confirmed that the work was

accepted on October 19, 2012.

To create a genuine issue of material fact on the timing of the acceptance, Mr.

Flagg relied on an internal TDOT email message regarding a subsequent inspection on

November 6, 2012. Frank Campbell, a special projects coordinator for TDOT, inspected

the completed work on November 6 and also found it acceptable. Mr. Campbell

explained that his inspection was for confirmation purposes only. He agreed that

Mr. Curtis was authorized to accept the work for the State. We conclude that proof of a

subsequent inspection does not create a genuine issue of material fact as to when the

State accepted Hudson Construction’s work. The undisputed proof is that Mr. Curtis was

authorized to accept the work, and he did so on October 19, 2012.

b. Compliance with Plans and Specifications

Mr. Flagg also contends that Hudson Construction deviated from the plans and

specifications by leaving loose gravel on the road before the final inspection. The

9

Standard Specifications had a final cleanup provision.4 Mr. Flagg submitted pictures

taken a week after his accident showing loose gravel in the road. And Mr. Franke

testified in his affidavit that these pictures accurately reflected the condition of the road

on October 18. Paula Wilcox, the onsite inspector, agreed that the amount of gravel in

the pictures was “improper” and, if she had seen it, she would have asked Hudson

Construction to remove it.

Proof of an unacceptable amount of gravel on the road on October 18 created a

genuine issue of material fact as to whether Hudson Construction complied with the

Standard Specifications. The fact that Mr. Curtis did not see any gravel on October 19

does not prove that the gravel was gone. During construction, excess gravel was

removed using a power broom. There is no evidence in this record that the road was

cleaned after October 16. And Mr. Flagg testified that the gravel he saw after his

accident could not be removed naturally in a gust of wind. Viewing the evidence in the

light most favorable to the nonmoving party, a reasonable juror could determine that the

gravel was present on October 19, but the state inspector failed to see it. See Brown v.

Chester Cty. Sch. Dist., No. W2008-00035-COA-R3-CV, 2008 WL 5397532, at *4

(Tenn. Ct. App. Dec. 30, 2008) (“From all of this evidence, a reasonable trier of fact

could infer that the step was bent before the game, even if Canada did not see it or saw it

but did not perceive it to be a dangerous condition.”); Henson v. F.W. Woolworth’s Co.,

537 S.W.2d 923, 925 (Tenn. Ct. App. 1974) (“There was proof from which the jury could

reasonably find that the bubble solution was spilled on the floor before Manager Veal and

Supervisor Tate walked down the aisle and they negligently failed to see such solution

which they could and would have seen had they been attentive.”).

4

The final cleanup provision specified:

Before final acceptance of the Work, the entire rights-of-way, all material pits, all waste

areas, all areas and access roads used by the Contractor, all streams in or over which he

has worked, and all ground occupied by the Contractor, in connection with the Work,

shall be cleaned of all forms, falsework, temporary structures, temporary erosion control

measures, excess materials, equipment, rubbish, and waste, and all parts of the work shall

be left in a neat and presentable condition. The entire right-of-way, all material pits, all

waste areas, all areas and access roads used by the Contractor shall be final stabilized per

the TN NPDES Construction General Permit criteria or per the agreed upon Reclamation

Plan. Final cleanup shall include the mowing of the rights-of-way as required. If the

project was graded under a previous Contract, final cleanup will be performed within the

construction limits of work being performed and other areas disturbed or otherwise

requiring cleanup due to the Contractor’s operations. No rubbish, waste or debris shall be

deposited on or in sight of the rights-of-way. All damage to private and public property

shall be replaced, repaired, or settled for.

10

2. Breach of the Duty of Care

The trial court ruled that Mr. Flagg failed to come forward with any evidence that

Hudson Construction deviated from the standard of care. As discussed above, Mr. Flagg

produced evidence from which a reasonable juror could find that Hudson Construction

failed to remove an unacceptable amount of gravel from the construction site before the

final inspection. And a juror could reasonably infer that Mr. Curtis failed to see the

gravel during his inspection.

We also conclude that a rational juror could find that the gravel remained on the

road through the date of the accident. There is no proof that the October 18 gravel was

affirmatively removed. According to Mr. Franke, gravel was in the same location on the

road on both October 18 and October 25. And the gravel looked the same both on

October 18 and after Mr. Flagg’s accident.

To reach the jury, Mr. Flagg need not “exclude every other reasonable conclusion”

from the evidence. Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn. Ct.

App. 1985). He simply must “present proof which, if believed by the jury, makes

plaintiff’s theory of the case more probable than the theory of the defendant.” Id.

Mr. Flagg’s theory that the gravel from the paving job remained on the road between

October 18 and 25 is more probable than the defendants’ theory that the October 18

gravel vanished only to be replaced later by similar gravel from another source in the

same location.

Unlike the trial court, we do not find the condition of the permanent white line

dispositive. Certainly, if the permanent road markings were applied over loose gravel, it

tends to prove that Hudson Construction was negligent. Several witnesses testified about

the importance of cleaning the road before application of the permanent striping. But a

solid white line does not prove the absence of negligence. Mr. Flagg presented direct

evidence of gravel on the road on October 18. And Hudson Construction had a duty to

remove all excess gravel and debris from the road before final acceptance. Failure to

remove scattered loose gravel from the road violated that duty and posed a foreseeable

risk of injury to motorists. See Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1993)

(“[A]ll persons have a duty to use reasonable care to refrain from conduct that will

foreseeably cause injury to others.”).

2. Breach of Contract

Mr. Flagg also brought a breach of contract claim against Hudson Construction as

a third party beneficiary. Hudson Construction did not challenge Mr. Flagg’s status as a

third party beneficiary to the state contract. See Coburn v. City of Dyersburg, 774

S.W.2d 610, 612 (Tenn. Ct. App. 1989) (describing the required showing for a plaintiff

claiming to be an intended third party beneficiary of a government contract). Rather, the

11

contractor claimed it was entitled to summary judgment because Mr. Flagg could not

establish a breach. As discussed above, Mr. Flagg created a genuine issue of material

fact as to whether Hudson Construction complied with its contractual duty to clean

excess debris from the road before final acceptance. So the court erred in granting

Hudson Construction summary judgment on this basis.

C. STATE OF TENNESSEE

Monetary claims against the State are governed by the Claims Commission Act.

Tenn. Code Ann. § 9-8-307. Under the Claims Commission Act, the State waives

sovereign immunity for monetary claims based on the acts or omissions of state

employees falling within 23 delineated categories. Id. § 9-8-307(a)(1). Mr. Flagg’s

claims arguably fall within two of those categories: negligent inspection and maintenance

of state highways or dangerous conditions on state highways. See id. § 9-8-307(a)(1)(I),

(J).

1. Negligent Inspection and Maintenance of State Highways

Tennessee Code Annotated § 9-8-307(a)(1)(I) waives sovereign immunity for

monetary claims based on

Negligence in . . . inspection of . . . public roads, streets, highways, or

bridges and similar structures, and negligence in maintenance of highways,

and bridges and similar structures, designated by the department of

transportation as being on the state system of highways or the state system

of interstate highways . . . .

We analyze the State’s liability using “the traditional tort concepts of duty and the

reasonably prudent person’s standard of care.” Id. § 9-8-307(c). The State argued that it

was entitled to summary judgment because Mr. Flagg could not establish a breach of the

duty of care. See McCall, 913 S.W.2d at 153.

“The State does not have a duty to make its roadways absolutely safe.” Elliott v.

State, No. M2016-00392-COA-R3-CV, 2017 WL 976053, at *3 (Tenn. Ct. App. Mar. 13,

2017). The mere fact that Mr. Flagg encountered a dangerous condition on the road does

not prove that the State was negligent in maintaining the road. See Francoeur v. State,

No. W2007-00853-COA-R3-CV, 2007 WL 4404105, at *10 (Tenn. Ct. App. Dec. 18,

2007) (“[T]he bare fact that a pothole existed on a state road is not sufficient to prove that

the State was negligent in maintaining the road.”). Mr. Flagg must demonstrate that the

State’s conduct fell below the applicable standard of care. See id. at *11.

Mr. Flagg contends that the State was negligent in inspecting the road after it was

repaved. He produced direct evidence that an unacceptable amount of gravel was on the

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road before the state inspection. Ms. Wilcox agreed that, if this amount of gravel had

been discovered during the inspection, the State would have told Hudson Construction to

remove it. But Mr. Curtis did not see any gravel during his driving inspection. We

conclude that Mr. Flagg presented just enough evidence to allow a fact finder to consider

whether Mr. Curtis’s inspection was negligent. See Henson, 537 S.W.2d at 925

(concluding that proof that bubble solution was spilled on the floor before the store

employees inspected the area created a jury issue as to whether the inspection was

negligent). But see Fuller v. Feingold, No. 02A01-9809-CV-00252, 1999 WL 250182, at

*4 (Tenn. Ct. App. Apr. 28, 1999) (“Without proof that the inspection performed by

Terminix fell below the normal standard of care or that termites were present when the

Terminix inspection occurred on November 22, 1995, the Fullers cannot prove any

breach of duty by Terminix.”).

2. Dangerous Conditions on State Maintained Highways

Mr. Flagg also seeks recovery under Tennessee Code Annotated § 9-8-

307(a)(1)(J), which governs monetary claims arising from dangerous conditions on state

maintained highways. In addition to proof of a dangerous condition, a claimant seeking

recovery under this category must demonstrate that the risk of injury was foreseeable and

that “notice [was] given to the proper state officials at a time sufficiently prior to the

injury for the state to have taken appropriate measures[.]” Tenn. Code Ann. § 9-8-

307(a)(1)(J); see also Sweeney v. State, 768 S.W.2d 253, 254-55 (Tenn. 1989).

The State moved for summary judgment based solely on lack of notice.

Ms. Wilcox and Mr. Curtis never saw the gravel. And they testified that TDOT was

never contacted or otherwise made aware of any gravel on the roadway before

Mr. Flagg’s accident.

In the absence of proof of actual notice, Mr. Flagg contends that there is a material

factual dispute as to whether the State may be charged with constructive notice. In

determining whether constructive notice is permitted in this category, we are guided by

cases interpreting an identical notice provision in another subsection of this statute,

Tennessee Code Annotated § 9-8-307(a)(1)(C), which governs claims arising from

dangerous conditions on state-controlled real property.5 See, e.g., Bowman v. State, 206

S.W.3d 467, 472-73 (Tenn. Ct. App. 2006); Sanders v. State, 783 S.W.2d 948, 951-52

(Tenn. Ct. App. 1989). Our courts have interpreted category (C) as a codification of

common law premises liability. See Hames v. State, 808 S.W.2d 41, 44 (Tenn. 1991).

Based on the similarity between these two subsections, we deem it appropriate to apply

the same analytical framework to claims under category (J).

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Claimants seeking recovery under category (C) must also “establish the foreseeability of the

risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to

have taken appropriate measures . . . .” Tenn. Code Ann. § 9-8-307(a)(1)(C).

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In a premises liability action, the owner or operator may be held liable for injuries

caused by a dangerous condition on the premises if, in addition to negligence, the injured

party demonstrates actual or constructive notice. Blair, 130 S.W.3d at 764. A plaintiff

may establish constructive notice in several ways. If the owner or his agent caused or

created the dangerous condition, the owner will be charged with notice. Id. If a third

party created the dangerous condition, notice may be established through proof that (1) a

dangerous condition existed for such a length of time that a reasonably prudent person

should have been aware of it or (2) the dangerous condition resulted from “a pattern of

conduct, a recurring incident, or a general or continuing condition” which would also put

the premises owner on constructive notice. Id. at 764, 765-66.

Here, as discussed above, Mr. Flagg produced evidence from which a reasonable

fact finder could conclude that Hudson Construction caused or created the dangerous

condition. The State may be charged with notice of a dangerous condition caused or

created by its agent. See Hodge v. State, No. M2004-00137-COA-R3-CV, 2006 WL

36905, at *4 (Tenn. Ct. App. Jan. 5, 2006) (“The fact that the State assumed the

responsibility to see to it that the construction was being performed in a safe manner

provides the necessary factual predicate for potential liability under both Tenn. Code

Ann. § 9-8-307(a)(1)(J) and Tenn. Code Ann. § 9-8-307(a)(1)(I).”); Hamby v. State, No.

W2002-00928-COA-R3-CV, 2002 WL 31749450, at *6 (Tenn. Ct. App. Dec. 4, 2002)

(“The first question is whether the state or its agent(s) created or constructed the

offending instrumentality. If that answer is yes, the inquiry stops and the state is charged

with actual notice.”).

Even without evidence that the State’s agent created the dangerous condition, we

conclude that there is material evidence of constructive notice. To withstand a motion for

summary judgment, the plaintiff must come forward with material evidence from which

the trier of fact could conclude that the dangerous condition existed for a sufficient time

and under such circumstances that, in the exercise of reasonable diligence, the condition

should have been discovered. Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn. Ct.

App. 1973). Whether a dangerous condition “existed long enough that a reasonable man

exercising reasonable care would have discovered it” is a fact question. Allison v. Blount

Nat’l Bank, 390 S.W.2d 716, 719 (Tenn. Ct. App. 1965). Only when there is a complete

lack of proof as to “when and how the dangerous condition came about,” do we remove

this question from the trier of fact. Chambliss v. Shoney’s Inc., 742 S.W.2d 271, 273

(Tenn. Ct. App. 1987).

Mr. Flagg presented direct evidence that gravel was on the road on October 18.

Absent any proof that the gravel was removed, it would be reasonable to infer that the

gravel was present for at least eight days prior to the accident. Whether the gravel was

present on the road a sufficient length of time that the State, in the exercise of reasonable

diligence, could have discovered it is a question for the finder of fact. See Allison, 390

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S.W.2d at 719. In making this determination, the fact finder may consider all the

surrounding circumstances, including the final inspection on October 19. See id.

(discussing factors to be considered). The fact that Mr. Curtis did not see any gravel

during his inspection “does not remove from the triers of fact the issue of whether the

defendant reasonably should have known of the [dangerous condition].” Simmons v.

Sears, Roebuck & Co., 713 S.W.2d 640, 642 (Tenn. 1986). Proof of an inadequate

inspection is directly relevant to the question of constructive notice. Hawks v. City of

Westmoreland, 960 S.W.2d 10, 16 (Tenn. 1997); see also Hodge, 2006 WL 36905, at *5

(concluding that direct evidence that a dangerous condition had existed for two weeks

before the accident “coupled with [the State inspector’s] insistence that he inspected the

construction site every day, provides sufficient evidence to support a finding that the gap

had been in existence long enough for [the State inspector] to discover and correct it”).

III.

The trial court erred in two critical evidentiary decisions. Expert testimony is not

required to determine whether the gravel on the road was from the paving project. And

the lay witnesses’ opinions as to the source of the gravel are admissible.

Viewing the evidence in the light most favorable to the nonmoving party and

giving him the benefit of all reasonable inferences, we conclude that Mr. Flagg came

forward with specific facts showing genuine issues for trial. So we reverse the trial

court’s grant of summary judgment and remand this case for further proceedings

consistent with this opinion.

_________________________________

W. NEAL MCBRAYER, JUDGE

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