Jerry Cox v. Water and Wastewater Treatment Authority Of Wilson County, Tennessee

01/31/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 5, 2018 Session

JERRY COX v. WATER AND WASTEWATER TREATMENT

AUTHORITY OF WILSON COUNTY, TENNESSEE

Appeal from the Circuit Court for Wilson County

No. 2017cv66 Clara W. Byrd, Judge

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No. M2018-00433-COA-R3-CV

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While a homeowner was standing on the water meter box in his yard, the concrete cover

on the box moved unexpectedly, and the homeowner was injured. The homeowner

sought compensation for his injuries from the county water authority. The water

authority denied it had prior notice that the water meter box was dangerous or defective

and alleged the comparative fault of the homeowner. After a bench trial, the trial court

found the water authority had actual notice of the dangerous or defective condition of the

water meter box and failed to take appropriate action. The court allocated 100% of the

fault to the water authority and awarded the homeowner both economic and noneconomic

damages. The water authority challenges the trial court’s findings on liability,

comparative fault, and the amount of noneconomic damages. The water authority also

claims that the trial court made several procedural errors. We conclude that the evidence

does not preponderate against the trial court’s factual findings. Discerning no reversible

error, we affirm.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Jeffrey R. Thompson and Gina S. Vogel, Knoxville, Tennessee, for the appellant, Water

and Wastewater Treatment Authority of Wilson County, Tennessee.

Hugh Green, Lebanon, Tennessee, for the appellee, Jerry A. Cox.

OPINION

I.

A.

On a frosty February morning, Jerry Cox was scraping ice off the windows of his

truck before his drive into work. To reach one of the windows, Mr. Cox had to step onto

the concrete cover over the water meter in his yard. While he was standing there, the

cover fell into the box beneath it. As a result, Mr. Cox fractured a bone in his foot.

Mr. Cox filed a complaint against the Water and Wastewater Treatment Authority

of Wilson County, Tennessee (“Water Authority”) in the Circuit Court for Wilson

County. The complaint alleged that the Water Authority had actual and/or constructive

notice that the water meter box was in an unreasonably dangerous, defective, and unsafe

condition and that the company failed to alleviate or warn of the danger. The Water

Authority denied responsibility and raised the defense of comparative fault.

On December 15, 2018, the Water Authority moved for summary judgment. The

motion was set to be heard on January 19, less than a week before trial. Mr. Cox moved

to strike the motion because a local rule of court required all summary judgment motions

to be heard at least sixty days before trial. Local Rule § 9.05 of the 15th Jud. Dist. The

trial court struck the Water Authority’s motion from the record, and the case proceeded to

trial.

B.

Mr. Cox’s water meter was housed in a box made of a heavy-duty composite

plastic. Plastic meter boxes like Mr. Cox’s were in use throughout Wilson County.

According to several Water Authority employees, plastic meter boxes were safe and

durable. Some had been in use for over twenty years without experiencing any problems.

But these same witnesses agreed that concrete meter boxes were stronger and sturdier.

And at some point in the last decade, the Water Authority had made the decision to

switch to concrete meter boxes. So for approximately ten years, the Water Authority had

installed concrete meter boxes in all new construction. The Water Authority replaced

existing plastic meter boxes only if a leak was discovered or the box was otherwise

damaged.

The Water Authority witnesses acknowledged that plastic meter boxes were

routinely damaged by lawn mowers, tractors, and other equipment. The Water Authority

replaced hundreds of damaged plastic boxes each year. Sometimes the customer notified

the Water Authority that a meter box had been damaged. And sometimes the meter

reader discovered and reported a damaged box.

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Mr. Cox’s meter box had been in use since at least 2004. Until his accident,

Mr. Cox had never contacted the Water Authority to report a problem with his water

meter box or cover. Still, the Water Authority had replaced the cover on Mr. Cox’s meter

box twice before the accident. The first replacement cover was plastic; the second,

concrete. The Water Authority witnesses explained that it was not uncommon for a

concrete cover to be used with a plastic meter box. The two covers, while made of

different materials, were interchangeable. And the plastic box was strong enough to

handle the weight of the concrete cover.

After Mr. Cox’s accident, the Water Authority replaced his plastic box with a new

concrete box and cover. A large part of the lip or ridge that held the cover in place was

damaged in Mr. Cox’s box. Mr. Cox claimed that the employee told him that the box

should have been replaced sooner. At trial, the employee could not recall making that

statement.

Mr. Cox brought the damaged box to court. The Water Authority had retained the

concrete cover. So he also brought pictures he had taken of the damaged plastic box with

his new concrete cover balanced somewhat precariously on top. The Water Authority

brought an undamaged plastic box with a plastic cover as a visual aid. A simple

comparison of the two boxes revealed the extent of the damage to Mr. Cox’s meter box.

The Water Authority maintained that it had no notice before the accident that

Mr. Cox’s water meter box was dangerous or defective. But on October 22, 2015, four

months before the accident, the Water Authority’s field supervisor had submitted a work

order for Mr. Cox’s water meter box to be replaced. The work order remained pending at

the time of the accident because the Water Authority assigned it a low priority.1

At trial, the field supervisor denied that he knew in October that Mr. Cox’s meter

box was unsafe. He had noticed a piece was missing from one corner of the box, creating

a noticeable gap.2 And he submitted the work order because he feared that the water

meter could freeze, not because of safety concerns. Still, he was forced to concede that

he knew that the box was damaged and should be replaced.

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The Water Authority manually processed work order requests. Leaks and new construction

were given top priority. The remaining plastic boxes were replaced in order of the severity of the

damage.

2

The meter reader who read Mr. Cox’s water meter for the next few months also acknowledged

that a corner had been missing from the box.

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Two Water Authority witnesses opined that Mr. Cox had damaged the meter box

when driving his truck across his yard. But they did not produce any evidence to support

their opinions. And Mr. Cox categorically denied having driven over the meter box.

Mr. Cox had fractured a bone in his left foot, which required surgery to repair. He

incurred $54,819.59 in medical bills. He submitted as evidence the deposition of Dr. Roy

Terry, the orthopedic surgeon who treated his injuries. Dr. Terry opined that Mr. Cox’s

medical bills were reasonable and necessary. Before trial, the Water Authority sought to

exclude Dr. Terry’s testimony about the medical bills from other providers. The court

ultimately denied the Water Authority’s motion in limine.

Testimony from Mr. Cox and Dr. Terry revealed that the injury to Mr. Cox’s foot

adversely affected his left knee, causing him to develop a permanent limp. His injury

also limited his ability to work and to enjoy activities with his son. He testified to the

difficulties he had experienced since the accident with walking and climbing. And his

physician had recommended another surgery to relieve his continuing pain.

At the conclusion of the trial, the court announced its findings and conclusions

from the bench. The trial court found the Water Authority had actual notice that

Mr. Cox’s water meter box was damaged and failed to take appropriate action. The court

also found that the Water Authority had not proven its allegations of comparative fault.

The court awarded Mr. Cox a judgment against the Water Authority in the total amount

of $117,319.59, comprised of $54,819.59 in economic damages and $62,500 in non-

economic damages. The court’s oral ruling was later incorporated into a written order.

II.

The Water Authority raises six issues on appeal. Three issues relate to procedural

matters both before and after trial. Specifically, the Water Authority contends the trial

court erred in refusing to consider its motion for summary judgment, denying its motion

in limine, and adopting the proposed findings of fact and conclusions of law prepared by

Mr. Cox’s counsel. The remaining issues concern the sufficiency of the evidence

underlying the trial court’s factual findings on liability, comparative fault, and the amount

of noneconomic damages. We begin with the procedural issues.

A.

1. Motion for Summary Judgment

The trial court struck the Water Authority’s motion for summary judgment from

the record because it was not filed in accordance with the court’s local rules. Local Rule

§ 9.05 of the Fifteenth Judicial District requires summary judgment motions to be heard

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at least sixty days before trial. The Water Authority’s motion was set for hearing less

than a week before trial.

“[L]ocal trial courts are empowered to enact and enforce local rules as long as

those rules do not conflict with general law.” Tigg v. Pirelli Tire Corp., 232 S.W.3d 28,

35 (Tenn. 2007). The Water Authority does not claim that the local rule is invalid.

Rather, it contends that the trial court should have waived the rule. We review a trial

court’s decision to enforce a local rule for an abuse of discretion. Dantzler v. Dantzler,

665 S.W.2d 385, 387 (Tenn. Ct. App. 1983). We will not reverse the trial court’s

decision “absent the clearest showing of an abuse of discretion . . . that . . . was the clear

cause of a miscarriage of justice.” Estate of Wilson v. Arlington Auto Sales, Inc., 743

S.W.2d 923, 928 (Tenn. Ct. App. 1987) (quoting Killinger v. Perry, 620 S.W.2d 525, 525

(Tenn. Ct. App. 1981)).

We find no abuse of discretion or miscarriage of justice here. The Water

Authority maintains that discovery disputes impeded its ability to file the motion any

sooner. That may be true, but it does not require waiver of the local rule. And enforcing

the local rule did not preclude the Water Authority from arguing it was entitled to a

judgment at trial.

2. Motion in Limine

The Water Authority next argues that the trial court erred in denying its motion in

limine because Dr. Terry was not qualified to testify that the medical bills from other

providers were reasonable and necessary. We review a trial court’s evidentiary decisions

for an abuse of discretion. See Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn. 2005).

“A physician who is familiar with the extent and nature of the medical treatment a

party has received may give an opinion concerning the necessity of another physician’s

services and the reasonableness of the charges.” Dedmon v. Steelman, 535 S.W.3d 431,

438 (Tenn. 2017). A physician is qualified to give an opinion about services and charges

if the physician demonstrates “(1) knowledge of the party’s condition, (2) knowledge of

the treatment the party received, (3) knowledge of the customary treatment options for

the condition in the medical community where the treatment was rendered, and (4)

knowledge of the customary charges for the treatment.” Id. But specific testimony as to

these requirements is not necessary. See Wells ex rel. Baker v. State, 435 S.W.3d 734,

743 (Tenn. Ct. App. 2013) (noting that a physician’s “curriculum vitae and her deposition

testimony highlight her familiarity with neurosurgery services as well as those particular

services provided to [the plaintiff]”).

Here, the court did not abuse its discretion. Dr. Terry treated Mr. Cox after the

accident and most of Mr. Cox’s medical bills were for services performed or ordered by

Dr. Terry. Dr. Terry also expressed familiarity with the treatment Mr. Cox received from

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other medical professionals and the customary charges for those services. See Wells, 435

S.W.3d at 743-44.

3. The Party-Prepared Judgment

The Water Authority also complains that the trial court erred in adopting the

proposed findings of fact and conclusions of law submitted by Mr. Cox’s counsel.

Appellate courts generally approve the trial court’s use of a counsel-prepared order as

long as two conditions are satisfied. “First, the findings and conclusions must accurately

reflect the decision of the trial court. Second, the record must not create doubt that the

decision represents the trial court’s own deliberations and decision.” Smith v. UHS of

Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014).

We find no fault in the trial court’s adoption of the prevailing party’s proposed

order in this instance. The written order accurately reflects the court’s bench ruling. The

oral ruling was expressly incorporated in the written order. And any discrepancies

between the written order and the court’s oral statements are minor. To the extent that

the written order contains findings not explicitly made by the court at the conclusion of

the hearing, the findings do not contradict the court’s statements from the bench. And we

find no indication in this record that the trial court failed to exercise its own independent

and deliberate decision making.

B.

1. Liability

Turning to more substantive concerns, we next address the Water Authority’s

challenge to the trial court’s finding of liability. Because this was a bench trial, our

review is de novo on the record with a presumption that the trial court’s factual findings

are correct, unless the evidence preponderates against those findings. Tenn. R. App. P.

13(d). Evidence preponderates against a finding of fact if the evidence “support[s]

another finding of fact with greater convincing effect.” Rawlings v. John Hancock Mut.

Life Ins. Co., 78 S.W3d 291, 296 (Tenn. Ct. App. 2001). Our review of the trial court’s

conclusions of law is de novo with no presumption of correctness. Kaplan v. Bugalla,

188 S.W.3d 632, 635 (Tenn. 2006).

The Water Authority’s liability is governed by the Governmental Tort Liability

Act. See Tenn. Code Ann. § 29-20-102(3)(A) (Supp. 2019). The GTLA removes

sovereign immunity “for any injury caused by the dangerous or defective condition of

any . . . public improvement owned and controlled by such governmental entity.” Tenn.

Code Ann. § 29-20-204(a) (2012); see also Curry v. City of Hohenwald, 223 S.W.3d 289,

295 (Tenn. Ct. App. 2007) (In the case of a water meter, “it is the duty of [the

government] to maintain the water meter and not the landowner.”). But immunity is only

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removed if the governmental entity had actual or constructive notice of the defective

condition. Tenn. Code Ann. § 29-20-204(b). This section of the GTLA essentially

codifies the common law of premises liability. Fowler v. City of Memphis, 514 S.W.3d

732, 737 (Tenn. Ct. App. 2016).

The Water Authority argues that the trial court erred in finding that it had notice of

the dangerous or defective condition of Mr. Cox’s meter box.3 Notice is a question of

fact. See Hawks v. City of Westmoreland, 960 S.W.2d 10, 15-16 (Tenn. 1997). Our

supreme court has defined actual notice as “knowledge of facts and circumstances

sufficiently pertinent in character to enable reasonably cautious and prudent persons to

investigate and ascertain the ultimate facts.” Kirby v. Macon Cty., 892 S.W.2d 403, 409

(Tenn. 1994).

On this record, we cannot say that the evidence preponderates against the trial

court’s notice finding. The field supervisor acknowledged that a meter box without a

structurally sound inner lip was dangerous. And four months before the accident, he

recognized that the meter box was damaged and submitted a work order to replace it. A

damage report to a governmental entity is generally sufficient to provide actual notice of

a dangerous or defective condition. See, e.g., Curry, 223 S.W.3d at 291, 295

(recognizing that city had notice of defective condition when landowner complained that

lid to water meter was broken); Lindgren v. City of Johnson City, 88 S.W.3d 581, 585

(Tenn. Ct. App. 2002) (finding that city had notice of dangerous condition of sewer cover

after surveyor made phone call about the cover’s condition). Although the field

supervisor maintained that he did not submit the work order for safety reasons, the court

did not credit the field supervisor’s testimony on this point. See Richards v. Liberty Mut.

Ins. Co., 70 S.W.3d 729, 733-34 (Tenn. 2002) ((“[F]indings with respect to credibility

and the weight of the evidence . . . may be inferred from the manner in which the trial

court resolves conflicts in the testimony and decides the case.”). We will not second

guess the court’s credibility determination. The trial court, unlike this Court, had the

opportunity to examine the damaged meter box and to observe the witness’s testimony.

Despite notice of the defective or dangerous condition of the meter box, the Water

Authority did not replace the box during the following four months. The proof supports a

finding that the Water Authority was liable for Mr. Cox’s injuries.

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The Water Authority also contends that “[t]o whatever, if any, extent that the Court based

liability on a finding that the defendant created the dangerous condition, this finding was in error.” As the

trial court did not rule on this basis, we do not consider this additional argument.

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2. Comparative Fault

The Water Authority also questions the trial court’s allocation of fault. We review

a trial court’s allocation of fault de novo upon the record with a presumption of

correctness. Cross v. City of Memphis, 20 S.W.3d 642, 645 (Tenn. 2000).

The evidence does not preponderate against the trial court’s decision to allocate

100% of the fault to the Water Authority. At trial, the Water Authority attempted to

establish Mr. Cox’s fault by proving that he had driven over the water meter box in his

truck. Mr. Cox denied the allegation. And the trial court found that Mr. Cox was a “very

credible” witness. We give a great amount of deference to the trial court’s credibility

determinations. C & W Asset Acquisition, LLC v. Oggs, 230 S.W.3d 671, 676 (Tenn. Ct.

App. 2007).

3. Damages Award

Finally, the Water Authority takes issue with the amount of the trial court’s non-

economic damages award. The amount of damages is a question of fact. Memphis Light,

Gas & Water Div. v. Starkey, 244 S.W.3d 344, 352 (Tenn. Ct. App. 2007). We presume

the amount awarded was correct unless the evidence preponderates against it. Id.

Contrary to the Water Authority’s argument on appeal, we do not find the damage

award to be speculative. “[S]peculative damages are prohibited only when the existence,

not the amount, of damages is uncertain.” See Overstreet v. Shoney’s, Inc., 4 S.W.3d

694, 703 (Tenn. Ct. App. 1999). Here, the trial court awarded Mr. Cox $62,500 for pain

and suffering, permanent impairment, and loss of enjoyment of life. “[E]ach of these

types of damages are separate and distinct losses . . . .” Id. at 715. And there is ample

basis in this record to award Mr. Cox these types of damages.

The Water Authority also contends that Mr. Cox failed to prove his damages with

reasonable certainty. The Water Authority misapprehends the plaintiff’s burden of proof

here. Non-economic damages are “highly subjective.” Dedmon, 535 S.W.3d at 438. So

while the award must be supported by “some evidence,” plaintiffs are not required to

establish a specific monetary value. Id. Given the difficulty in assigning a monetary

value to non-economic damages, we afford the trier of fact broad latitude. Id. Mr. Cox

testified about the difficulties he has faced since the accident. In addition to pain and

suffering, he has developed a permanent limp which has limited his ability to enjoy his

former activities. The evidence in this record does not preponderate against the amount

of the non-economic damages award.

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III.

The trial court did not abuse its discretion by striking the Water Authority’s

motion for summary judgment, relying on Dr. Terry’s deposition, or adopting a party-

prepared judgment. And the evidence does not preponderate against the trial court’s

liability determination, allocation of fault, or award of damages. So we affirm the

judgment of the trial court and remand this case for further proceedings as may be

necessary and consistent with this opinion.

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W. NEAL MCBRAYER, JUDGE

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