958 F.2d 1242

Judy S. ROBERTS and Husband, Larry L. Roberts, Plaintiffs-Appellees,
The Metropolitan Government of Nashville and Davidson County, Tennessee, Individually and d/b/a Hamilton Creek Sailboat Marina, Defendant-Appellant

No. 89-179-II

Court of Appeals of Tennessee, Middle Section, at Nashville

October 13, 1989

Lewis B. Hollabaugh, Nashville, Tennessee, Attorney For Appellees.

Philip D. Baltz, Susan Short Jones, Nashville, Tennessee, Attorneys For Appellant.

Henry F. Todd, Presiding Judge, Ben H. Cantrell, Judge, William C. Koch, Jr., Judge, Concur.

Henry F. TODD, Presiding Judge.

The defendant, Metropolitan Government of Nashville and Davidson County, Tennessee has appealed from non-jury awards of $40,000.00 to the plaintiff, Judy S. Roberts, and $10,000.00 to the plaintiff, Larry L. Roberts, for injuries to Mrs. Roberts and loss of her services to Mr. Roberts resulting from a fall by Mrs. Roberts on a lakeside dock maintained by the defendant city.

The issues on appeal are stated by the appellant as follows:

I. Whether or not the plaintiffs failed to establish proof of a dangerous or defective condition, or any notice thereof.

II. Whether or not the plaintiff failed to establish any negligence on the part of the metropolitan government.

III. Whether or not there was any proof of loss of consortium and, if so, whether or not the damages awarded exceeded the range of reasonableness.

The Facts

There is no controversy as to the circumstances of the injury.

The defendant operates the Hamilton Creek Sailboat Marina where plaintiffs keep a sailboat which is moored beside a floating dock. The surface of the dock and approaches thereto consists of wooden boards. At the place of the subject injury, the boards were positioned lengthwise so that a person walking thereon would be walking the length of the boards, rather than across them. The grain of the wood in the boards ran in the same direction as the boards, that is lengthwise, so that a person walking on the boards would be walking in the direction of the grain and not across it.

Since the wood boards of the dock and approaches were not protected from the weather, certain parts of the grain of the wood would, from time to time detach itself from a board in the form of a large, pointed splinter or sliver, attached smoothly to the board at its base, but "curling" upward from the board at the pointed end.

Prior to the injury, the manager of the marina was aware of splinters or slivers separating from the floor boards, and discussed with a patron the necessity of wearing shoes to avoid injury from the protruding splinters. The manager of the marina inspected the area of the injury on the morning of the date of the injury and did not notice any condition requiring correction. It was the impression of the manager that there were no splinters protruding more than 1/8 inch above the surface of a board.

During the morning of September 8, 1985, plaintiffs arrived at the marina and traversed the dock and its approach on the way to their boat. They noticed no protruding splinter on the way. At about 6:30 p.m., after a day in their sailboat, plaintiffs returned to the dock and proceeded from their boat to their automobile. As Mrs. Roberts walked on the dock, her injury occurred in a manner described by her as follows:

Q: Now, you weren't walking along, I gather, with your head looking down?

A: No. I was not looking directly at the dock in front of my feet. I was looking ahead where I was going.

Q: As you were walking up there, could you see the dock in front of you walking along?

A. Yes.

Q: Did you observe anything unusual about the dock?

A: No, I did not.

Q: Now, what is the first indication that you had that something was wrong?

A: Well, when something caught my foot and I tried to catch myself with my hands as I went down and then after I fell down there was a splinter in my shoe, and apparently it had caught in my toe and bent straight up so that it tripped me and then, as I fell forward, it apparently finally broke off.

Mrs. Roberts was wearing open toed canvas shoes. The end of the splinter entered the shoe between the sole of the shoe and the bottom of Mrs. Roberts' foot which was not scratched or punctured.

Upon these facts, the Trial Judge found the defendant liable.

Negligence of Defendant

It is insisted that no negligence is shown on the part of the defendant.

The proprietor of a place of business is under a duty to exercise reasonable care to keep the premises in a reasonably sale and suitable condition, including the removal of or warning against unsafe conditions, if by the exercise of reasonable care the proprietor should have been aware of such condition. Chambliss v. Shoney's Inc., Tenn. App. 1987, 742 S.W.2d 271, and authority cited therein.

Requirements of constructive notice of a defect in the premises may be met where the defect is reasonably foreseeable because it results from a pattern of conduct or recurring incidents or general or recurring condition. Worsham v. Pilot Oil Corp., Tenn. App. 1987, 728 S.W.2d 19.

The owner of property will be chargeable with knowledge of a defect which a reasonable inspection would have revealed. Northcross v. Loew's Memphis Theater Co., 3 Tenn. App. 51 (1925).

The evidence supports the finding of the Trial Judge that the employee of the defendant was negligent in failing to discover and remedy the dangerous condition which produced the injury of Mrs. Roberts.

Immunity of Defendant

Defendant argues that it is immune from liability for failure to inspect or negligent inspection of the dock.

T.C.A. § 29-20-205, of the Governmental Tort Liability Act, does provide for removal of governmental immunity 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.

The quoted portion of the section obviously refers to official duty to inspect independent of duty to maintain, such as the duty of building or health inspectors to examine private premises. It was not intended to and does not relieve a governmental unit from liability for negligent maintenance of its own premises, even though failure to inspect or defective inspection may be involved in negligent maintenance.

Contributory Negligence

Although not specified as an issue on appeal, contributory negligence is urged in the argument of defendant. It is true that Mrs. Roberts traversed the same area earlier in the day of her injury. However, she was walking in the opposite direction from which viewpoint, the raised splinter would hardly be noticeable. Immediately before her fall, she was looking at the dock surface, but for some distance ahead. Viewed from such a distance, the defect was not as visible as it would have been to a person looking directly at the surface for defects known to exist.

The circumstances of this injury do not require a finding of contributory negligence.

The Award to Larry L. Roberts

The complaint states that the plaintiff, Larry L. Roberts, has incurred and will in the future incur expenses for the medical care and treatment of his wife, and has been and will in the future be deprived of the services, companionship and consortium of his wife. The complaint concludes:

Wherefore, and for all of which, the plaintiff, Larry L. Roberts, sues the defendant . . . for the sum of $20,000.00 for medical expenses for his wife and for loss of his wife's companionship, services and consortium. . . .

The brief of plaintiff states without citation to the record that the parties stipulated that Judy Roberts incurred $5,217.33 in medical expenses as a result of this accident. Such expenses certainly could not justly or legally be included in both of the separate judgments in favor of each plaintiff. It must be presumed that the judgment of the Trial Court followed the evidence rather than the allegations of the complaint and awarded the medical expenses to Mrs. Roberts.

Therefore, the $10,000.00 in favor of Mr. Roberts must be justified upon the deprivation of services, society, and conjugal affection and relations, and such inconvenience suffered by the husband as a result of the injury to his wife. All v. John Gerber Co., 36 Tenn. App. 134, 252 S.W.2d 138 (1952).

The period of the disability and convalescence of Mrs. Roberts is not clear from the record. For about six weeks, she was unable to perform any of her home duties. She used one or two crutches for three months. For a considerable time, not stated, she was unable to drive an automobile, or was forced to use Mr. Robert's automobile which had automatic transmission. She never recovered her full physical capabilities, particularly her ability to perform her former duties in operating the said sailboat. For a considerable time, at least three months, Mr. Roberts was forced to perform all of the household duties ordinarily performed by his wife.

The evidence sustains the award of $10,000.00 to Mr. Roberts.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the defendant. The cause is remanded to the Trial Court for such further proceedings as may be necessary and proper.

Affirmed and remanded.