§56.2 Claim Against Government Facility

The Case: Paduch v. The City of Johnson City, 896 S.W.2d 767 (Tenn. 1995).

The Basic Facts: Plaintiffs sought damages against the City for failure to pave a street.

The Bottom Line:

• "The cases in Tennessee considering municipal liability for nuisance establish the following requirements: an inherently dangerous condition and affirmative action on the part of the municipality. Both elements must be established before a nuisance can be found and 'the distinction must be preserved 'between negligence, an omission of duty, and a nuisance, or active wrong.'' Powell v. City of Nashville, [69 S.W.2d 894 (Tenn. 1933)]." 896 S.W.2d at 771.

Other Sources of Note: Pate v. City of Martin , 614 S.W.2d 46, 47 (Tenn. 1981) ("[a] nuisance has been defined as anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable").

Recent Cases: Halliburton v. Town of Halls , 295 S.W.3d 636 (Tenn. Ct. App. 2008) (affirming trial court finding that defendant governmental entity was immune from suit for common law nuisance under Tennessee Governmental Tort Liability Act (GTLA) and finding no liability under GTLA for dangerous condition finding no actual notice); Wilson v. Ours, No. M2006-02703-COA-R3-CV, 2008 WL 4211117 (Tenn. Ct. App. Sept. 3, 2008) (holding plaintiffs failed to carry their burden of proof on nuisance claim against municipality because they presented no evidence of an inherently dangerous condition); Frank v. Government of City of Morristown, No. E2007-02012-COA-R3-CV, 2008 WL 2938048 (Tenn. Ct. App. Jul. 31, 2008) (recognizing that acts of the government are not nuisances per se unless governmental function is conducted in an unreasonable manner and holding plaintiff failed to establish nuisance absent any finding that the defendant City acted unreasonably in conducting the construction project complained about.