Benny Vaughn v. Coffee County, Tennessee

05/25/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 31, 2022 Session

BENNY VAUGHN v. COFFEE COUNTY, TENNESSEE

Appeal from the Circuit Court for Coffee County

No. 45634 Vanessa Jackson, Judge

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No. M2021-00653-COA-R3-CV

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An inmate filed this case alleging that he sustained injuries while in the county jail after

slipping on water in his cell. The trial court granted the county’s motion for summary

judgment, ruling that the county lacked actual or constructive notice of the alleged

dangerous condition. Because we conclude that the inmate submitted sufficient proof to

create a dispute of material fact as to the county’s actual notice of the alleged dangerous

condition, we reverse.

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

Remanded

J. STEVEN STAFFORD, P.J., W.S. delivered the opinion of the court, in which ARNOLD B.

GOLDIN and KENNY ARMSTRONG, JJ., joined.

Drew Justice, Murfreesboro, Tennessee, for the appellant, Benny Vaughn.

Jeffrey R. Thompson and Gina S. Vogel, Knoxville, Tennessee, for the appellee, Coffee

County, Tennessee.

MEMORANDUM OPINION1

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Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it

shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not

be cited or relied on for any reason in any unrelated case.

I. FACTUAL AND PROCEDURAL HISTORY

On December 19, 2018, Plaintiff/Appellant Benny Vaughn (“Plaintiff”) filed a

complaint against Defendant/Appellee Coffee County, Tennessee (“Defendant”), alleging

that he fell and broke his hip in the Defendant’s jail due to defective and leaking plumbing.

On April 22, 2019, Defendant answered denying the material allegations in the complaint.

Specifically, Defendant pleaded all defenses available to it under the Tennessee

Government Tort Liability Act (“GTLA”), as well as asserted that it lacked actual or

constructive knowledge of any unsafe or dangerous condition.

On October 6, 2020, Defendant filed a motion for summary judgment on two bases:

(1) that Plaintiff could not present proof that Defendant had actual or constructive

knowledge of a dangerous condition; and (2) that Plaintiff was more than 50% at fault for

his injuries. In support of this motion, Defendant filed selections from Plaintiff’s

deposition, selections from the deposition of nurse Lynn Carter, affidavits from Jail

Administrator Pam Freeman, correctional officers Chase Alford and Juan Flores, and

certain jail records.

Defendant also filed a statement of undisputed facts, to which Plaintiff responded

on February 19, 2021. The following facts were therefore undisputed for purposes of

summary judgment:

1. Plaintiff was incarcerated in cell BD 114 of the Coffee County Jail in

December 2017.

2. When Plaintiff was placed in cell BD 114, he noticed that there was water

leaking from the seal where the toilet attaches to the cell floor.

3. The water had caused a stain to form on the cell floor.

4. Plaintiff testified that the leak was “slow,” and it “took a while for the

water to creep out.”

5. The water did not cover the entirety of Plaintiffs floor; instead, the

plaintiff described the water as follows: “it was long, and it come out of

the commode and went toward the door.”

6. Plaintiff testified that the toilet consistently leaked for a month leading up

to the incident at issue.

7. A few days prior to the events giving rise to Plaintiffs alleged injuries in

this case, Plaintiff slipped in the water in his cell and fell.

8. Plaintiff alleges to have reported the fall to Officer Juan Flores.

9. The fall which is the basis of this lawsuit occurred on December 21st or

22nd, 2017. [Plaintiff admitted this fact but alleged that the incident

occurred on December 22.]

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10. On the date Plaintiff said he fell, Plaintiff testified that he was “in a hurry”

to get his food tray which was being delivered to his cell door by Officer

Chase Alford.

11. According to the plaintiff, at the time of the fall, there was the “usual”

amount of water on the floor which had leaked from the toilet.

12. Plaintiff acknowledges that there was an area in his cell that he could have

traversed in order to avoid the water but chose not to because “he was in

a hurry to eat.”

13. Plaintiff knows the water was “mopped up once,” but does not know if

the toilet/water were addressed at any time while he was not in his cell.

14. Pam Freeman, Chase Alford, and Juan Flores have all attested that none

of them saw [Plaintiff] slip and fall on the water located in his cell.

15. Lynn Carter, FNP treated Plaintiff while he was incarcerated at the Coffee

County Jail and testified regarding his medical care.

16. Plaintiff had a history of psychosis and suicidal behavior during his stay

at the Coffee County Jail.

17. On January 1, 2018, Plaintiff reported to a jail medical provider that

“warlocks caused him to break his hip.”

18. Nurse Carter testified that following surgery for his hip, Plaintiff was not

compliant with doctors’ orders.

19. For example, Plaintiff repeatedly pulled the staples out of his surgical

cite, rubbed feces into his wound and generally exhibited poor hygiene

which resulted in “extreme infection.”

(Renumbered and record citations omitted).

The following allegations, however, Plaintiff denied by referencing portions

of his own deposition:

1. The plaintiff never reported to Ms. Freeman, Mr. Alford, or Mr. Flores

that he had a leaky toilet in his cell, that the leaky toilet caused water to

accumulate, or that he had fallen on water in his cell.

2. Having no notice of the alleged water, none of them know the source of

the water, or how long the water had been accumulated in his cell at the

time Plaintiff alleges to have fallen and sustained injury on December 21

or 22, 2017.

3. Had any of them been made aware of the leaking toilet, or the water

accumulation, it would have been reported to maintenance and there

would be a record of it.

(Renumbered and record citations omitted).

In support of his denials, Plaintiff cited the following from his deposition:

Q. Okay. And did you talk to anybody at Coffee County Jail about that?

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A. Yes, sir.

Q. Who did you talk to?

A. Several people.

Q. Okay. Can you name them?

A. They said -- Alford, Ms. Freeman. I told Ms. Freeman. She said she would

have maintenance look at it.

* * *

Q. Okay. Did somebody come look at it?

A. Never did.

* * *

Q. So you talked to Ms. Freeman about it, and I think you also said you talked

to Mr. Alford about it.

A. Yeah.

Q. What did he say?

A. That they was supposed to get to it.

* * *

Q. Okay. Other than these two conversations, did you ever talk to anybody

else about it?

A. I even told maintenance myself, I think. They said, yeah, that they was

supposed to come by there and look at it.

Q. Who did you talk to in maintenance?

A. Some older guy. I don’t know what his name is. Some older guy. The guy

that runs it, whatever his name is.

Q. So the head guy over maintenance is the one you talked to.

A. Yes, sir.

* * *

Q. Other than those conversations you have told me about, did you have any

other conversations with anyone at the Coffee County Jail about the toilet

issue.

A. I probably told the inmates. I don’t know which one or who. Probably my

friend. We would talk about it.

Q. Okay. But other than Ms. Freeman, Mr. Alford and the maintenance guy,

did you talk about anybody else about the toilet issue?

A. No sir. Not that I can remember.

Elsewhere in his deposition, Plaintiff testified that he had also slipped a few days before

the accident at issue and had informed Officer Flores of that fact; according to Plaintiff,

however, Officer Flores “more or less blowed it off.” Finally, Plaintiff also denied the

following allegation on the basis that the jail’s maintenance records were plainly

incomplete and inadmissible: “Based on the maintenance records of the Coffee County

Jail, there was no issues reported as to a toilet in BD 114 for the month of December in

2017.”

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On February 23, 2021, Defendant filed a statement containing additional undisputed

material facts, which alleged that:

1. On December 18, 2017, Plaintiff filed a medical sick call request

complaining that the whole pod (including his cell) was flooded with

water. A [] nurse responded to the request stating, “Mr. Vaughn the

officers reported that you keep flooding your cell by stuffing your clothes

in the toilet. Please refrain from doing that.”

2. Minutes later, Plaintiff filed a grievance directed to the officers

complaining of the water in his cell. The grievance was answered on

December 18, 2017 at 5:07pm, indicating that Plaintiffs cell “has been

cleaned and is free of any access water.”

3. Plaintiff testified that the fall which is the basis of this lawsuit occurred

on December 21, 2017.

4. However, the fall which resulted in Plaintiff’s hip fracture actually

occurred on or before December 20, 2017.

(Record citations omitted). Plaintiff did not respond to these additional facts.

On March 4, 2021, the trial court entered an order granting Defendant’s motion. In

its order, the trial court noted that Plaintiff testified in his deposition that he informed Ms.

Freeman, Officer Alford, and Officer Flores of the leaky toilet, but that he could not recall

the dates of these conversations. But the court further noted that these individuals had stated

via affidavit that they had not been made aware of the issues. As such, the trial court

concluded that

Plaintiff’s uncorroborated deposition testimony does not overcome the sworn

statements of these three jail employees. In the absence of any other proof,

there is no material evidence from which the Court could find that these three

employees (or any other employee of the Defendant) had actual or

constructive knowledge of a dangerous condition in the Plaintiff’s cell.

The trial court next referenced the additional undisputed facts submitted by Defendant,

[T]he only notice to Defendant of any dangerous condition occurred

on December 18, 2017. Officers responded to that notice and Plaintiff’s cell

was cleaned and was free of excess water at 5:07 p.m. on that same day.

Officers reported that the water from the toilet in Plaintiff’s cell was a result

of Plaintiff stuffing his clothes into the toilet. No other reports of a water leak

or water problem in Plaintiff’s cell were made prior to his fall.

The Court finds that there is no material evidence in the record from

which the Court could conclude that the Defendant’s employees at the Coffee

County Jail, exercising reasonable care and diligence, should have

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discovered the alleged dangerous condition (water on floor of Plaintiff’s

cell), or that they had actual knowledge thereof.

The trial court further ruled that the issue of comparative fault was moot. A final order was

entered dismissing Plaintiff’s claim with prejudice on May 12, 2021. This appeal followed.

II. ISSUES PRESENTED

Plaintiff raises a single issue in this case:

In this premises liability case, the trial court granted summary judgment to

the Defendant, Coffee County, by holding that the Defendant’s witnesses

were more believable than the Plaintiff, and consequently that the Plaintiff

could not show that the Defendant had any notice of the unsafe condition.

Did the trial court wrongly grant summary judgment?

In the posture of appellee, Defendant frames the issues as follows:

1. Whether the trial court correctly granted summary judgment to the defendant

on plaintiff’s negligence claim when the undisputed, material facts in the

record demonstrated that the defendant did not have constructive or actual

knowledge of the alleged dangerous condition.

2. Whether summary judgment to the defendant is proper on additional,

alternative grounds, when the undisputed, material facts in the record

demonstrate that the defendant did not breach a duty of care owed to the

plaintiff.

3. Whether summary judgment to the defendant is proper on additional,

alternative grounds, when the undisputed, material facts in the record

demonstrate that plaintiff was more than fifty percent or more at fault for his

injuries.

III. STANDARD OF REVIEW

The trial court granted Defendant’s motion for summary judgment. Summary

judgment is appropriate where the moving party has demonstrated 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; Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477

S.W.3d 235, 250 (Tenn. 2015). “We review a trial court’s ruling on a motion for summary

judgment de novo, without a presumption of correctness.” Rye, 477 S.W.3d at

250 (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)). The burden is upon the

moving party to establish that its motion satisfies these requirements. See Staples v. CBL

Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000). Under the summary judgment standards

established in Rye, when the moving party does not bear the burden of proof at trial, it

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“may satisfy its burden of production 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, 477 S.W.3d at 264.

IV. ANALYSIS

A.

There is no dispute in this case that Defendant enjoys governmental immunity under

the GTLA. Tennessee Code Annotated section 29-20-101 et seq. Tennessee Code

Annotated section 29-20-203(a), provides, however, that: “Immunity from suit of a

governmental entity is removed for any injury caused by a defective, unsafe, or dangerous

condition of any street, alley, sidewalk or highway, owned and controlled by such

governmental entity.” Tennessee Code Annotated section 29-20-204(a) also provides:

“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.” The removal of

immunity only applies under either statute, however, where “constructive and/or actual

notice to the governmental entity of such condition be alleged and proved[.]” Tenn. Code

Ann. §§ 29-20-203(b), 204(b). This Court has previously held that “[t]he section of

the GTLA which removes sovereign immunity for injuries caused by dangerous or

defective structures essentially codifies [the] common-law” rule that:

To sustain a claim for premises liability, a plaintiff must prove (1) that the

dangerous or defective condition was caused or created by the owner,

operator, or his agent, or (2) that the condition was created by a third party

and the owner, operator, or agent had actual or constructive notice of the

condition before the accident.

Brown v. Chester Cnty. Sch. Dist., No. W2008-00035-COA-R3-CV, 2008 WL 5397532,

at *2 (Tenn. Ct. App. Dec. 30, 2008) (citing Martin v. Washmaster Auto Ctr., 946 S.W.2d

314, 318 (Tenn. Ct. App. 1996)). In this case, Defendant argues that Plaintiff failed to

submit proof that it created the dangerous condition or had either actual or constructive

notice of the dangerous condition at issue so as to remove governmental immunity.

The Tennessee Supreme Court has described actual notice as “knowledge of facts

and circumstances sufficiently pertinent in character to enable reasonably cautious and

prudent persons to investigate and ascertain as to the ultimate facts.” Kirby v. Macon Cnty.,

892 S.W.2d 403, 409 (Tenn. 1994) (quoting Texas Co. v. Aycock, 190 Tenn. 16, 227

S.W.2d 41, 46 (Tenn. 1950)). Constructive notice, in contrast, is defined 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

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as to cast upon him the duty of inquiring into it.” Parker v. Holiday Hosp. Franchising,

Inc., 446 S.W.3d 341, 351–52 (Tenn. 2014) (quoting Hawks v. City of Westmoreland, 960

S.W.2d 10, 15 (Tenn. 1997)). Constructive notice may be established by showing that a

dangerous or defective condition existed for such a length of time that a property owner,

in the exercise of reasonable care, should have become aware of it. Parker, 446 S.W.3d at

352 (citing Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986)).

Constructive notice may also be established by showing that the dangerous condition

resulted from “‘a pattern of conduct, a recurring incident, or a general or continuing

condition.’” Parker, 446 S.W.3d at 352 (quoting Blair v. West Town Mall, 130 S.W.3d

761, 765 (Tenn. 2004)).

In this appeal, Plaintiff asserts that he put forth specific evidence that Defendant had

actual knowledge of the dangerous condition, citing his own deposition testimony that he

had informed multiple employees of the Defendant that his floor was flooded before his

injury. We agree. Here, the trial court was faced with directly competing proof. According

to Plaintiff’s deposition, he informed at least Ms. Freeman and Officer Alford of the water

on the floor before his fall. Ms. Freeman and Officer Alford denied that these conversations

took place. But because there was directly conflicting testimony on this issue, a credibility

issue was created. And issues that turn on credibility generally cannot be decided via

summary judgment. See Byrd v. Hall, 847 S.W.2d 208, 216 (Tenn. 1993), holding modified

by Hannan v. Alltel Publ’g Co., 270 S.W.3d 1 (Tenn. 2008), and holding modified by Rye,

477 S.W.3d 235 (“When a material fact is in dispute creating a genuine issue, when the

credibility of witnesses is an integral part of the factual proof, or when evidence must be

weighed, a trial is necessary because such issues are not appropriately resolved on the basis

of affidavits.”); Vaulton v. Polaris Indus., Inc., No. E2021-00489-COA-R3-CV, 2022 WL

628502, at *13 (Tenn. Ct. App. Mar. 4, 2022) (“At the summary judgment stage, we do not

weigh the evidence, nor do we engage in credibility determinations regarding the

deponents.”). But see Hashi v. Parkway Xpress, LLC, No. M2018-01469-COA-R3-CV,

2019 WL 5431858, at *4 (Tenn. Ct. App. Oct. 23, 2019) (quoting Hepp v. Joe B’s, Inc.,

No. 01A01-9604-CV-00183, 1997 WL 266839, at *3 (Tenn. Ct. App. May 21, 1997)

(“[T]o warrant a denial of summary judgment, credibility questions ‘must r[ise] to a level

higher than the normal credibility questions that arise whenever a witness testifies.’”).

Defendant asserts, however, that a crucial component is missing from Plaintiff’s

deposition testimony—when he had these conversations with Ms. Freeman and Officer

Alford. And because the proof was undisputed that a flooding had occurred on December

18 and been cleaned up by Defendant, there was no proof that Defendant had any notice of

the dangerous condition that existed on December 20, the date of Appellant’s injury. Thus,

Defendant asks us to infer from the proof presented that Plaintiff may have had these

conversations with Ms. Freeman and Officer Alford prior to December 18, when the first

flooding was reported and ameliorated, and not in the time between December 18 and

December 20.

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Respectfully, we cannot agree. Under Tennessee’s summary judgment standard,

when there are inferences to be drawn from the facts, we are required to draw all reasonable

inferences in favor of the non-moving party. Vanquish Worldwide, LLC v. Sentinel Ins.

Co., Ltd., No. E2020-01650-COA-R3-CV, 2022 WL 189791, at *2 (Tenn. Ct. App. Jan.

21, 2022) (citing Parker v. Holiday Hosp. Franchising, Inc., 446 S.W.3d 341, 346–47

(Tenn. 2014)) (“Because the party moving for summary judgment bears the burden of

proof, we view the evidence in favor of the non-moving party by resolving all

reasonable inferences in its favor and discarding all countervailing evidence.”). Here,

Plaintiff responded to Defendant’s motion for summary judgment by pointing to specific

proof that he informed Defendant’s employees about the water that he asserts caused him

to slip and fall. Moreover, he testified that after he told these individuals about the problem,

no one ever came to look at it or fix it. So, Plaintiff’s proof taken with all the reasonable

inferences in his favor, was that his conversations concerning the water on the floor must

not have been in reference to the incident on December 18 because that water was cleaned

up by Defendant’s employees. In other words, it is reasonable to infer from Plaintiff’s

testimony that his conversation with Ms. Freeman and Officer Alford occurred between

the December 18 clean up and his December 20 fall. Thus, he presented proof that

Defendant had actual notice of the condition that he alleged caused him to fall and be

injured. This proof creates a genuine dispute of material fact as to the issue of actual notice,

making summary judgment on this issue inappropriate.

Plaintiff also contends that the trial court erred in granting summary judgment

without addressing his argument that Defendant had constructive notice. Defendant does

not address Plaintiff’s contention that the trial court failed to specifically address this

component of Plaintiff’s argument. Instead, Defendant argues that Plaintiff failed to present

proof to establish constructive notice. As previously discussed, however, Plaintiff may

overcome Defendant’s motion for summary on the issue of notice by establishing either

actual or constructive notice. Brown, 2008 WL 5397532, at *2; see also Reed v. Greene

Cnty., No. E2004-00090-COA-R3CV, 2005 WL 100843, at *5 (Tenn. Ct. App. Jan. 19,

2005) (noting that the defendant must prove that the plaintiff had “neither actual or

constructive notice”). We have concluded that Plaintiff pointed to specific proof in the

record to establish a genuine dispute of material fact as to Defendant’s actual notice of the

alleged dangerous condition at issue. As such, Plaintiff need not establish that Defendant

also had constructive notice. We therefore pretermit consideration of that issue.

B.

Defendant next asserts that this Court should affirm the trial court’s grant of

summary judgment on a different basis—either lack of duty or comparative fault. It is true

that this Court may sometimes affirm a trial court’s summary judgment ruling on a different

basis than that relied upon by the trial court. See Bobo v. City of Jackson, 511 S.W.3d 14,

26 n.14 (Tenn. Ct. App. 2015) (“[W]e are entitled . . . to affirm the entry

of summary judgment on grounds that differ from those forming the basis of the trial

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court’s decision.”). We note, however, that as an appellate court, our jurisdiction is

appellate only and “we are constrained to only review those issues that have been decided

by the trial court in the first instance.” Whalum v. Shelby Cnty. Election Comm’n, No.

W2013-02076-COA-R3-CV, 2014 WL 4919601, at *3 (Tenn. Ct. App. Sept. 30, 2014)

(citing Reid v. Reid, 388 S.W.3d 292, 294 (Tenn. Ct. App. 2012). As a result, we often

decline to address issues that were pretermitted by the trial court; under those

circumstances, we will remand to the prior court for consideration of the pretermitted issue.

See, e.g., Payne v. CSX Transportation, Inc., 467 S.W.3d 413, 438 (Tenn. 2015) (“It is

not unusual for this Court to instruct a trial court or an intermediate appellate court to

address unresolved or pretermitted issues on remand, provided that the issues have not

been waived.”). Here, the trial court specifically pretermitted Defendant’s argument

concerning comparative fault as moot. As such, we conclude remand for the trial court to

resolve this previously pretermitted issue is most appropriate.

Although the result is the same, we decline to rule on Defendant’s argument

concerning lack of duty on a different basis: this was not an argument raised by Defendant

in its motion for summary judgment. With a few exceptions not relevant in this case,

arguments not raised in the trial court will not be entertained on appeal. See, e.g., City of

Memphis v. Shelby County, Tennessee, 469 S.W.3d 531, 560 (Tenn. Ct. App. 2015)

(citing Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983)) (holding that “[i]t has

long been the general rule that questions not raised in the trial court will not be entertained

on appeal”). Because Defendants did not raise lack of duty as a basis for summary

judgment, we will not consider this argument on appeal.

V. CONCLUSION

The judgment of the Coffee County Circuit Court is reversed, and this cause is

remanded for further proceedings. Costs of this appeal are taxed to Appellee Coffee

County, Tennessee, for which execution may issue if necessary.

S/ J. Steven Stafford

J. STEVEN STAFFORD, JUDGE

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