Opinion
No. 2:19-CV-00095-JRG-CRW
07-28-2020
Kris WATERHOUSE and Arthur Waterhouse, Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.
Thomas C. Jessee, Jessee & Jessee, Johnson City, TN, for Plaintiffs. Ibrahim M. Berro, Mark Alan Mohr, David D. Ayliffe, Office of General Counsel, Knoxville, TN, for Defendant.
Thomas C. Jessee, Jessee & Jessee, Johnson City, TN, for Plaintiffs.
Ibrahim M. Berro, Mark Alan Mohr, David D. Ayliffe, Office of General Counsel, Knoxville, TN, for Defendant.
MEMORANDUM OPINION
J. RONNIE GREER, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. 19], Defendant's Memorandum in Support of Motion for Summary Judgment [Doc. 21], Plaintiffs’ Response in Opposition [Doc. 24], and Defendant's Reply [Doc. 26]. For the reasons herein, the Court will grant Defendant's motion.
I. BACKGROUND
In June 2018, Plaintiff Kris Waterhouse, her mother, and her husband, Plaintiff Arthur Waterhouse—all of whom are citizens of North Carolina—visited the Watauga Tailwater Picnic Area in East Tennessee, where they gathered with friends with the intention of picnicking, boating, and fishing. [Kris Waterhouse Resp. to Interrogs., Doc. 21-4, at 1, 2; Kris Waterhouse Dep., Doc. 21-2, at 53:1–9, 56:7–22]. The Watauga Tailwater Picnic Area is a recreational area that is open to the public during the day, and Defendant Tennessee Valley Authority ("TVA") constructed it, and it owns and maintains it. [Mullendore Decl., Doc. 20, at 1]. The picnic area includes a pavilion, picnic tables, grills, a restroom facility, fishing areas, and a boat launch that leads to the Watauga River. [Id. at 1–2].
When the Waterhouses arrived at the picnic area, they unloaded a cooler, set up folding chairs, pitched a tent, ate lunch, and conversed with each other and friends. [Kris Waterhouse Resp. Interrogs. at 1; Kris Waterhouse Dep. at 53:5–11; Arthur Waterhouse Dep., Doc. 25-4, at 46:9–15]. After lunch, one of Mrs. Waterhouse's friends asked her if she would like to go for a ride on his boat. [Kris Waterhouse Dep. at 53:10–14]. As Mrs. Waterhouse walked from the picnic area toward the boat ramp, she stepped in a hole, which she did not see because it was partially covered by grass. [Id. at 53:16–20, 76:8–24]. According to the TVA, the hole was eight-to-ten inches deep, [Mullendore Decl. at 2], but according to Mrs. Waterhouse, the hole was at least a few feet deep—so deep, in fact, that her "left leg went all the way down up to [her] crotch," [Kris Waterhouse Dep. at 63:25, 64:1]. Mrs. Waterhouse's right leg "hit the ground straight down," and she suffered a fractured right ankle, which required doctors to perform emergency surgery and insert a plate and screws. [Id. at 64:2, 77:9–23].
In the days following Mrs. Waterhouse's injury, Mr. Waterhouse returned alone to the picnic area, where he learned that the picnic area's maintenance crew had filled the hole with over three five-gallon buckets of gravel. [Arthur Waterhouse Dep. at 74:8–17]. Mr. Waterhouse took photos and measurements of the hole, and he discovered several other holes, which he maintains were "exactly the same diameter" as the hole that injured his wife but were filled with concrete. [Id. at 75:7–13, 79:3–25, 80:1–3]. According to Mr. Waterhouse, "[it] look[ed] like a [fence] post was in [the holes] at one time. [Id. at 78:23–25, 79:1]; see [Kris Waterhouse Resp. to Interrogs. at 5 ("Based upon information and belief, the hole was left after a fence post was removed. The hole was covered with grass, making it difficult to see.") ]. The TVA attests that its employees at the picnic area had been without knowledge of the hole, or the other holes, until Mrs. Waterhouse suffered her injury. [Mullendore Decl. at 2].
Mrs. Waterhouse now brings this federal suit against the TVA, alleging that the TVA was negligent "[i]n allowing a dangerous condition to exist that would expose [her] and all other invitees of [the Watauga Tailwater Picnic Area] to serious injury." [Compl., Doc. 1, at 2]. In addition, Mr. Waterhouse brings a claim against the TVA for loss of consortium. [Id. at 3]. The TVA now moves for summary judgment on both claims.
II. LEGAL STANDARD
Summary judgment is proper when the moving party shows, or "point[s] out to the district court," Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), that the record—the admissions, affidavits, answers to interrogatories, declarations, depositions, or other materials—is without a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a), (c). The moving party has the initial burden of identifying the basis for summary judgment and the portions of the record that lack genuine issues of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. The moving party discharges that burden by showing "an absence of evidence to support the nonmoving party's" claim or defense, Celotex , 477 U.S. at 325, 106 S.Ct. 2548, at which point the nonmoving party, to survive summary judgment, must identify facts in the record that create a genuine issue of material fact, id. at 324, 106 S.Ct. 2548.
Not just any factual dispute will defeat a motion for summary judgment—the requirement is "that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it may affect the outcome of the case under the applicable substantive law, id. , and an issue is "genuine" if the evidence is "such that a reasonable jury could return a verdict for the nonmoving party." Id. In short, the inquiry is whether the record contains evidence that "presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251–52, 106 S.Ct. 2505. When ruling on a motion for summary judgment, a court must view the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505. A court may also resolve pure questions of law on a motion for summary judgment. See Hill v. Homeward Residential, Inc. , 799 F.3d 544, 550 (6th Cir. 2015).
III. ANALYSIS
As the movant for summary judgment, the TVA relies exclusively on Tennessee state law, specifically Tennessee Code Annotated § 70-7-102(a), which states:
The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant's own use, nature and historical studies and research, rock climbing, skeet and trap shooting, sporting clays, shooting sports, and target shooting, including archery and shooting range activities, skiing, off-road vehicle riding, and cutting or removing wood for the participant's own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes[.]
This statute, known as Tennessee's "recreational use statute," is "designed to encourage owners to open their land for recreational use" without fear of incurring liability. Cagle v. United States , 937 F.2d 1073, 1075 (6th Cir. 1991). It is as an affirmative defense for individuals or entities who fit the statutory definition of a "landowner." Parent v. State , 991 S.W.2d 240, 242 (Tenn. 1999).
A. Subject Matter Jurisdiction
Before wading into the merits of the parties’ respective arguments under the Tennessee recreational use statute, the Court is compelled to address briefly an issue concerning its subject matter jurisdiction. See In re Lewis , 398 F.3d 735, 739 (6th Cir. 2005) (acknowledging that "[t]he existence of subject matter jurisdiction may be raised at any time, by any party, or even sua sponte by the court itself"). The TVA is "an instrumentality and agency of the Government of the United States." 16 U.S.C. § 831r ; see TVA v. Hill , 437 U.S. 153, 157, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (referring to the TVA as "a wholly owned public corporation of the United States"). As far as litigation against the United States goes, the United States, "[u]nder settled principles of sovereign immunity," is "immune from suit, save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Dalm , 494 U.S. 596, 608, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990) (internal quotation marks and quotation omitted).
Under 28 U.S.C. § 1346(b)(1), however, Congress created a waiver of the United States’ sovereign immunity for certain tort actions, over which the district courts can exercise subject matter jurisdiction:
Subject to the provisions of chapter 171 of this title, the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
§ 1346(b)(1). According to the Waterhouses, the Court has "subject matter [jurisdiction] of this action pursuant to 28 U.S.C. § 1346." [Compl. at 1]. But in 28 U.S.C. § 2680(l ), which is part of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. , Congress made clear that § 1346(b)(1) does not apply to the TVA. See § 2680(l ) ("[S]ection 1346(b) of this title shall not apply to .... [a]ny claim arising from the activities of the Tennessee Valley Authority."); Thacker v. TVA , ––– U.S. ––––, 139 S. Ct. 1435, 1440–41, 203 L.Ed.2d 668 (2019) ("Congress made clear that the FTCA does ‘not apply to[ ] [a]ny claim arising from the activities of the [TVA]." (quoting § 2680(l ) )); Stevens v. TVA , 712 F.2d 1047, 1051 (6th Cir. 1983) ("[S]uits against the TVA are not suits against the United States.").
The Waterhouses, though, also allege that the TVA is subject to suit under the Tennessee Valley Authority Act of 1933 ("TVA Act"), 16 U.S.C. § 831 et seq. [Compl. at 1–2], which provides that the TVA "[m]ay sue and be sued in its corporate name," id. § 831c(b). This "sue and be sued" clause constitutes a waiver of any sovereign immunity that otherwise might have applied to the TVA. See Thacker , 139 S. Ct. at 1439 ("Without such a clause, the TVA (as an entity of the Federal Government) would have enjoyed sovereign immunity from suit." (citation omitted)). The Waterhouses’ claim under the TVA Act is indisputably a fountainhead of federal question jurisdiction for the Court. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); see also Agarwal v. TVA , No. 1:04-CV-370, 2005 WL 2219113, at *1 (E.D. Tenn. Sept. 12, 2005) ("A claim against a federal corporation created by an Act of Congress, such as the Tennessee Valley Authority Act of 1933 ... falls within the grant of federal question judisdiction [sic]" (citing Wayne v. TVA , 730 F.2d 392, 397 (5th Cir. 1984), cert. denied , 469 U.S. 1159, 105 S.Ct. 908, 83 L.Ed.2d 922 (1985) )); Jackson v. TVA , 462 F. Supp. 45, 50 (M.D. Tenn. 1978) ("TVA's status as a wholly owned federal corporation created under an act of Congress places the present action against TVA squarely within the grant of subject matter jurisdiction under 28 U.S.C. § 1331."), aff'd , 595 F.2d 1120 (6th Cir. 1979). The TVA agrees that the Court has federal question jurisdiction over this case under § 1331. [Answer, Doc. 6, at 1].
Although the Waterhouses’ claim vests the Court with federal question jurisdiction, the parties place the Court in the peculiar position of having to apply state law to this case: the Waterhouses’ claim is one of common-law negligence under Tennessee law, and the TVA, in relying on the Tennessee recreational use statute, also invokes Tennessee law. The parties, however, do not address why or how the Court has license to apply state law to this case. See Robinson v. HSBC Mortg. Servs., Inc. , No. 15-1053, 2015 WL 13752060, at *2 (W.D. Tenn. July 10, 2015) ("The Erie doctrine is simply inapplicable to federal questions." (quotation omitted)); cf. Presque Isle Harbor Dev. Co. v. Dow Chem. Co. , 875 F. Supp. 1312, 1316 (W.D. Mich. 1995) ("State law has no relevance to the actual existence of any liability as an operator under CERCLA, which is purely a federal question.").
The Court clearly lacks diversity jurisdiction over this case. See Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C. , 176 F.3d 904, 907 (6th Cir. 1999) (stating that diversity jurisdiction "exists only when no plaintiff and no defendant are citizens of the same state" (citation omitted)); see also Texas v. Interstate Commerce Comm'n , 258 U.S. 158, 160, 42 S.Ct. 261, 66 L.Ed. 531 (1922) ("[B]oth defendants are sued as corporate entities created by the United States for governmental purposes; and, if that be their status, they are not citizens of any state." (footnote omitted)); Koppers Co. v. Garling & Langlois , 594 F.2d 1094, 1097 n.1 (6th Cir. 1979) (recognizing that the United States is a party "who may not be sued in diversity" (citing United States v. Dry Dock Savings Inst. , 149 F.2d 917, 918 (2d Cir. 1945) )); LINC Acquisition One, LLC v. J4 Broad. of Cincinnati, Inc. , No. 1:04-cv-810, 2005 WL 8162168, at *4 (S.D. Ohio Feb. 23, 2005) ("Generally, ‘the United States and its agencies ... are not citizens of any state [for purposes of diversity jurisdiction].’ " (citations omitted)).
Also, the TVA Act itself is silent as to jurisdictional and choice-of-law issues, bringing no elucidation to Congress's words that the TVA "[m]ay sue and be sued in its corporate name." § 831c(b); see Grant v. TVA , 49 F. Supp. 564, 565 (E.D. Tenn. 1942) (observing that "[n]o other textual provisions are made concerning permission to be sued [under § 831c(b) ]"). If anything, under the Federal Rules of Civil Procedure—which state that a corporation's "[c]apacity to sue or be sued is determined ... by the law under which it was organized," Fed. R. Civ. P. 17(b)(2) — the TVA's status as a wholly owned corporation of the United States might suggest that it is subject to suit in federal tort. See generally Fed. Express Corp. v. U.S. Postal Serv. , 151 F.3d 536, 542, 543 (6th Cir. 1998) (determining that the United States Postal Service, as a "federal instrumentality" operating under a statutory "sue and be sued" clause, is subject to suit in federal tort under the Lanham Act).
But other federal courts in cases involving the TVA Act's sue-and-be-sued clause have nonetheless countenanced state-law negligence claims against the TVA, though their rationale for doing so is not fully clear to this Court. See Bobo v. TVA , No. CV 12-S-1930-NE, 2015 WL 3833879, at *13 (N.D. Ala. June 22, 2015) ("Plaintiffs’ negligence claims are based upon the laws of Alabama. That may seem incongruous in view of the fact that TVA is a constitutionally authorized instrumentality of the United States."); Kirby v. TVA , 877 F. Supp. 578, 587 n.1 (N.D. Ala. 1994) (declaring that "[s]tate law governs the elements of a cause of action in tort brought against TVA under the ‘sue and be sued’ clause of the TVA Act" (citations omitted)); see also Ky. Agric. Energy Corp. v. Bowling Green Mun. Utils. Bd. & TVA , 735 F. Supp. 226, 228 (W.D. Ky. 1989) (applying Kentucky law to a negligence claim under the TVA's sue-and-be-sued clause); Harris v. TVA , 507 F. Supp. 318, 320 (E.D. Tenn. 1980) (applying a Tennessee statute of limitations to a tort claim against the TVA).
Maybe an action under the TVA Act's sue-and-be-sued clause is, as the Fifth Circuit Court of Appeals has theorized, an area of "concurrent federal-state competence," which, based on the Erie doctrine and its progeny, necessitates the application of state law. Wayne , 730 F.2d at 397–98 (quotation omitted). Or maybe an action under the sue-and-be-sued clause requires the application of state law because, as the Supreme Court has observed, sue-and-be-sued clauses "should be liberally construed," meaning that generally they ought to expose public corporations like the TVA to the same suits that private corporations face for their commercial activities—including, presumably, negligence suits. Thacker , 139 S. Ct. at 1441–43 (quotation omitted). In any case, both parties here apply Tennessee law in their briefs, in apparent agreement that Tennessee law rather than federal law governs the claims in this case. The Court will therefore apply Tennessee law. See Smith v. TVA , 699 F.2d 1043, 1045 (11th Cir. 1983) ("The parties have agreed that Tennessee law governs the negligence question.").
B. The Tennessee Recreational Use Statute
The Court now returns its focus to the TVA's request for summary judgment under the Tennessee recreational use statute, which, again, is an affirmative defense under Tennessee law. Parent , 991 S.W.2d at 242. The TVA, to discharge its initial burden as the movant for summary judgment, must satisfy two elements by showing that the record lacks a genuine issue of material fact as to either. First, it must establish that it is a "landowner" under the statute, and second, it must establish that Mrs. Waterhouse was engaged in a "recreational activit[y]" under the statute. Id. at 243 ; Morgan v. State , No. M2002-02496-COA-R3-CV, 2004 WL 170352, at *5 (Tenn. Ct. App. Jan. 27, 2004). Based on the record evidence, the first element is clear-cut: the TVA avows in a sworn declaration that it is the owner of the Watauga Tailwater Picnic Area, and the record contains no evidence or genuine factual dispute to the contrary. [Mullendore Decl. at 1].
Incidentally, the Sixth Circuit has rejected the argument that the Tennessee recreational use statute does not apply to governmental entities. Cagle , 937 F.2d at 1075.
--------
As to the second element, the Court begins by noting that the Tennessee recreational use statute enumerates several recreational activities:
hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant's own use, nature and historical studies and research, rock climbing, skeet and trap shooting, sporting clays, shooting sports, and target shooting, including archery and shooting range activities, skiing, off-road vehicle riding, and cutting or removing wood for the participant's own use[.]
Tenn. Code Ann. § 70-7-102(a). This list of recreational activities is "neither exclusive nor exhaustive," Parent , 991 S.W.2d at 243, and "activities similar to those explicitly enumerated in [the statute] may also fall within [its] purview," id. ; see id. (determining that bicycling, which is not listed in the statute, is "by its very nature a recreational activity and is comparable to the activities enumerated in" the statute, and that the statute therefore "provides the State with an immunity defense when injury occurs during bicycling"); see also Cagle , 937 F.2d at 1076 (determining that the United States was immune from suit under the Tennessee recreational use statute when a boy injured himself while climbing on a battlefield cannon at Shiloh National Military Park, even though "playing on a cannon" is not a recreational activity "specifically enumerated in § 70-7-102" (footnote omitted)).
The Tennessee recreational use statute's protections "appl[y] the moment a visitor enters the property for a recreational purpose, even if the visitor has not yet begun the recreational activity," Mathews v. State , No. W2005-01042-COA-R3-CV, 2005 WL 3479318, at *4 (Tenn. Ct. App. Dec. 19, 2005), and in this vein, Mrs. Waterhouse—as the TVA points out—testified that she and her family entered the Watauga Tailwater Picnic with the purpose of fishing, boating, and picnicking:
Q. So you went there to picnic?
A. To picnic, yes.
Q. And you went there to fish?
A. Yes.
Q. And then you also went there to ride around on the boat?
A. Yes.
[Kris Waterhouse Dep. at 56:15–21]. Fishing and boating are recreational activities as defined by the statute. Tenn. Code Ann. § 70-7-102(a). Also, Mrs. Waterhouse cannot realistically argue that picnicking—an activity that she actually did engage in—is not an "activit[y] similar to those explicitly enumerated in [the statute]." Parent , 991 S.W.2d at 243. Various recreational use statutes throughout the country define "picnicking" as a recreational activity. See, e.g. , Fla. Sta. § 375.251(5)(b); N.J. Stat. Ann. § 2A:42A-2. The TVA therefore succeeds in establishing that the record lacks a material factual dispute as to whether Mrs. Waterhouse entered the picnic area to engage in, and did engage in, a recreational activity—a point that Mrs. Waterhouse, in fact, does not challenge in any significant respect in her response.
The burden now shifts to Mrs. Waterhouse, who, to survive summary judgment, must demonstrate that the record evidence, as it pertains to the recreational use statute, presents a genuine issue of material fact for a jury. Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ; see Parent , 991 S.W.2d at 243 (engaging in "[a]n analysis of whether the plaintiff has established the presence of a Tenn. Code Ann. § 70–7–104 exception" (emphasis added)). Mrs. Waterhouse "may defeat this affirmative defense in essentially three ways." Morgan , 2004 WL 170352 at *4. She may "(1) prove that the [TVA] is not a ‘landowner,’ (2) prove that [she] was not engaged in a recreational activity, or (3) prove that the landowner's conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104." Id. Mrs. Waterhouse opts for the third option, contending that the TVA, in failing to safely maintain the picnic area, was grossly negligent, [Pls.’ Resp. at 1–8], which constitutes an exception to a landowner's ability to capitalize on the Tennessee recreational use statute. Tenn. Code Ann. § 70-7-104(a)(1).
Under Tennessee law, gross negligence is "a conscious neglect of duty or a callous indifference to the consequences." Cook By & Through Uithoven v. Spinnaker's of Rivergate, Inc. , 878 S.W.2d 934, 938 (Tenn. 1994) (emphasis added) (quotation omitted). In other words, it is "not characterized by inadvertence." Livingston v. High Country Adventures, Inc. , Nos. 97-5600, 97-5692, 1998 WL 466131, at *3 (6th Cir. July 30, 1998) (quoting Kennedy v. Perry , 688 S.W.2d 74, 78 (Tenn. Ct. App. 1984) ). Rather, it is a "negligent act done with utter unconcern for the safety of others," or "with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law." Leatherwood v. Wadley , 121 S.W.3d 682, 694 (Tenn. Ct. App. 2003) (quotations omitted); see Cook By & Through Uithoven , 878 S.W.2d at 938–39 ("A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances." (quoting Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 901 (Tenn. 1992) )). For a claim of gross negligence, a party must establish the elements of a negligence claim, in addition to the element that the act at issue was "done with utter unconcern for the safety of others," or "with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law." Menuskin v. Williams , 145 F.3d 755, 766 (6th Cir. 1998) (quotation omitted). Gross negligence is ordinarily a question of fact, but it "may be decided as a matter of law when the material facts are not in dispute" and "would permit a reasonable person to reach only one conclusion." Morgan , 2004 WL 170352 at *5 (citations omitted).
In cases involving the Tennessee recreational use statute, "[g]ross negligence ... has only been found in the most egregious cases." McCaig v. Whitmore , No. W2015-00646-COA-R3-CV, 2016 WL 693154, *6 (Tenn. Ct. App. Feb. 22, 2016). In fact, since 1987—the year when the statute was amended to include the exception for gross negligence—Tennessee courts and federal courts in this circuit, based on this Court's research, have declined to apply the exception in all but two cases: Rewcastle v. State , No E2002-00506-COA-R3CV, 2002 WL 31926848 (Tenn. Ct. App. App. Dec. 31, 2002) and Sumner v. United States , 794 F. Supp. 1358 (M.D. Tenn. 1992). Mrs. Waterhouse relies exclusively on Rewcastle in arguing that the TVA is grossly negligent. [Pls.’ Resp. at 5–8].
In Rewcastle , the plaintiff, a motorcyclist, was driving on a main road in a state park when he noticed several side roads, each of which had a gate and sign that restricted access to motorcyclists. 2002 WL 31926848 at *1. He eventually reached an open side road—unrestricted by a gate or sign—and turned onto it. Id. At points along the road, the state had posted three signs that read, "No Motorized Vehicles Beyond This Point." Id. at *2. The signs, however, were riddled with bullet holes and covered by vines and weeds. Id. The plaintiff did not see them, but on either side of the road, he did notice orange streamers, which he thought were meant to warn him of an underground culvert. Id. While driving at about twenty-five miles per hour, he struck a cable, which was extended across the road and roughly eight to twelve inches above the ground. Id. The cable nearly severed his leg. Id.
At the summary judgment stage, the evidence, significantly, showed that (1) although the state was in the practice of spraying herbicides on the vines and weeds, it had not done so recently, and (2) although the state had been aware of another accident involving the cable, it had taken no action to prevent further accidents apart from placing the orange streamers on the cable. Id. at *2–3. The Tennessee Court of Appeals concluded that this evidence—that is, the evidence showing that the state had created the hazardous condition, failed to erect a gate or maintain the warning signs, and knew, based on the prior accident, that the cable was dangerous to the public—was sufficient to allow a reasonable jury to conclude that the state had been grossly negligent. Id. at *5.
In Mrs. Waterhouse's view, Rewcastle is similar to her case because the TVA, like the state in Rewcastle , knew of a hazardous condition yet took no action to rectify it. According to Mrs. Waterhouse, the evidence of "other holes similar in size and shape to the hole that [she] fell in that had been filled in with concrete" would enable a reasonable juror to find that the TVA's employees or agents created the holes, were aware of them, and failed to warn the public about them. [Pls.’ Resp. at 7]. The TVA, however, argues that this case is "nothing like" Rewcastle. [Def.’s Reply at 6]. The TVA asserts that the record lacks any evidence establishing "that TVA knowingly created a dangerous condition, that [it] failed to maintain previously existing warning signage, or that [it] was aware of any prior accidents involving the hole." [Id. at 10].
Even if the Court were to conclude that Mrs. Waterhouse has established negligence, she falls well short of demonstrating that the record evidence, against the backdrop of Rewcastle , crosses the threshold of gross negligence. In Rewcastle , the evidence of the state's failure to act despite its knowledge of the cable's danger to the public was, in this Court's view, instrumental to the state court's decision—and the TVA and Mrs. Waterhouse, based on their arguments in their briefs, agree with this view. The TVA, however, has filed a declaration from the picnic area's maintenance foreman, who swears that neither she nor her crew had knowledge of the hole, or the other holes that had been filled, until Mrs. Waterhouse suffered her broken ankle. [Mullendore Decl. at 2]. In an effort to counter this direct evidence, Mrs. Waterhouse musters only circumstantial evidence—that is, the evidence that the other holes exist and had previously been filled—to argue that the TVA must have known of the hole that injured her and been consciously indifferent to its risk to the public. [Pls.’ Resp. at 7].
But even if the TVA, at one time, had been aware of the other holes and filled them, evidence as to this fact does nothing to move the dial from an act of mere negligence to an act of gross negligence. Was the TVA's failure to fill all the holes except one a simple act of inadvertence? See Thomason v. Wayne County , 611 S.W.2d 585, 587 (Tenn. Ct. App. 1980) ("Here the Road Superintendent was not shown to be conscious of any increased risk resulting from his repair of the guard rail.... He was attempting to minimize risk[.]"). Or did the TVA consciously leave that one hole unfilled, with an "utter unconcern" for the safety of others? Leatherwood , 121 S.W.3d at 694 (quotation omitted). A juror would not be able to say based on the record. Even in the light most favorable to Mrs. Waterhouse, the evidence is insufficient to empower any reasonable juror to make the mammoth inferential leap necessary to find that the TVA's failure to fill all the holes was due to a conscious indifference toward others’ safety. The record, unlike in Rewcastle , contains no evidence that the TVA consciously failed to abate a risk of harm to the public after being put on notice of that risk, whether through a prior accident, a close call, or some other occurrence. See Solomon v. United States , No. 3:12-CV-433-TAV-HBG, 2013 WL 6668737, at *3 (E.D. Tenn. Dec. 18, 2013) (determining that the National Park Service was not grossly negligent for failing to warn the public about "unmaintained trails" because "it had no knowledge or reason to know of the existence of a depression or hole on an undeveloped path which was seasonally covered by falling leaves"). And incidentally, the Court cannot help but notice that Mrs. Waterhouse has pleaded only negligence in her complaint—not gross negligence. The parties’ pleadings are not germane here at the summary judgment stage, true, but at the same time, "[n]egligence does not become ‘gross’ just by saying so" at summary judgment. Menuskin , 145 F.3d at 767 (quotation omitted).
While the Court is sympathetic to the fact that Mrs. Waterhouse suffered a serious injury while participating in a recreational activity, the Tennessee General Assembly, in the recreational use statute, made the policy decision to shield landowners from liability in cases with facts like those here, and the Court must therefore grant summary judgment in the TVA's favor. Because the TVA is entitled to summary judgment on Mrs. Waterhouse's negligence claim, the Court also must grant summary judgment on Mr. Waterhouse's derivative claim of loss of consortium. See Hunley v. Silver Furniture Mfg. Co. , 38 S.W.3d 555, 557 (Tenn. 2001) ("[L]oss of consortium is a derivative claim." (citations omitted)); McCorkle v. TVA , No. 3:11-CV-168, 2012 WL 607661, at *6 (E.D. Tenn. Feb. 24, 2012) ("[The spouse's] claims are derivative of [the plaintiff's] claims in the sense that [the spouse's] claims originate from [the plaintiff's] claims for her personal injuries. Accordingly, because [the spouse's] claims for [the plaintiff's] injuries are derivative of her claims, his claims will likewise be dismissed." (citing Greene v. Titi , No. M2008-02788-COA-R3-CV, 2010 WL 98884, at *10–11 (Tenn. Ct. App. Jan. 11, 2010) )); see also Cross v. City of Memphis , 20 S.W.3d 642, 645 (Tenn. 2000) ("[B]ecause [the plaintiff's] claim for loss of consortium is derivative, his amount of recovery must also be reduced by the percentage of fault allocated to his spouse." (citation omitted)).
IV. CONCLUSION
As the movant for summary judgment, the TVA meets its burden of establishing that it is entitled to summary judgment on the Waterhouses’ claims. The TVA's Motion for Summary Judgment [Doc. 19] is therefore GRANTED , and the Clerk of Court is DIRECTED to close this case. The Court will enter an order consistent with this opinion.