§31.8 Latent Defect

The Case: Hawks v. City of Westermoreland, 960 S.W.2d 10 (Tenn. 1997).

The Basic Facts: Plaintiffs' were owners of a home which suffered extensive damage in a fire, brought suit against the Defendant city under the Governmental Tort Liability Act (GTLA). Plaintiffs alleged that their home suffered extensive damage because firefighters could not open fire hydrants sooner because underground valves had been closed, rendering the hydrants inoperable.

The Bottom Line:

• "The City also argues that it is immune from suit because the plaintiffs did not prove that the closed valves and inoperable fire hydrants were patently defective conditions rather than latent defective conditions. We disagree." 960 S.W.2d at 10.
• "The GTLA provides that '[i]mmunity is not removed for latent defective conditions,' Tenn. Code Ann. § 29-20-204(b) (1980 Repl.), the Act does not condition the removal of immunity upon proof that injury resulted from a patently dangerous or defective condition. The City's argument that immunity is removed only if a plaintiff proves that the injuries resulted from a patently defective condition is contrary to the plain language of the statute and is without merit." Id. at 16-17.
• "Moreover, 'latent defect'; has been defined as '[a] hidden or concealed defect. One which could not be discovered by reasonable and customary inspection.' [Black's Law Dictionary, 794 (5th ed. 1979)]. The Utah Supreme Court, in construing a statute which, like our own, provided that governmental '[i]mmunity is not waived for latent defective conditions,' also held that a latent defect is '[a] defect which reasonably careful inspection will not reveal.' Vincent v. Salt Lake County, 583 P.2d 105, 107 (Utah 1978). The closed valves and inoperable fire hydrants in this case could have been discovered by reasonable and customary inspection. Accordingly, as a matter of law, they were not latent defective conditions for which the City retained immunity." Id. at 17.