August 30, 1996

Recently you contacted MTAS wanting to know if the town had potential tort liability due to a street design. It seems that there have been a number of automobile accidents at an intersection in the town and town officials are wondering whether to exercise the power of eminent domain to help alleviate the situation. Under the facts, as I understand them, the town should probably go ahead and use its power of eminent domain.

Case law in Tennessee is seemingly split over whether a municipality is liable for intersection design. One case on the subject is Butler v. City of Dyersburg, 15 Tam 32-5 (Tn.Ct.App. 1990). In that case the city was found not liable for failure to install a stop light at a particular intersection. However, a number of other cases have reached different results. Governmental entities have been found liable for allowing stop signs to be obscured by brush, Fretwell v. Chaffin, 652 S.W.2d 755 (Tenn. 1983), and for failure to maintain a good road surface, Baker V. Seal, 694 S.W.2d (Tn.Ct.App. 1984). Perhaps the most striking case is White v. City of Somerville, 1992 WL 361353 (Tn.Ct.App. 1992). In that case the plaintiff sued claiming the city had improperly placed stop signs at a particular intersection. The court ruled that T.C.A. 29-20-205(1), which grants governmental entities immunity for discretionary functions did not apply. Instead, the court ruled that 29-20-203(a), which removes governmental immunity for dangerous conditions applied. The court used this since the city had previous problems with the intersection and had decided to place stop signs at certain locations within it. The court also noted that the city had notice of the condition, always a prerequisite of governmental liability, since it had tried to rectify the situation. See also Seever v. Hardeman Cty., No. 02A01-9306-CV-00138, 1994 WL 725211 (Tenn. Ct. App. Dec. 30, 1994)

Applying these cases to your fact pattern, I believe it would be prudent for the city to go ahead and condemn the land in question and fix the intersection. Though no Tennessee case specifically holds a governmental entity liable for intersection design per se, I think that after Whiteand Seever the trend is heading that way, particularly when the entity knows of the problem and has a chance to do something about it.