April 8, 1994
I recently gave an opinion to you relative to the right of a city to sue a carrier for damages to city streets. My opinion was that a city had no such right, that it had to address the problem of overweight trucks with weight and load regulations. That opinion took into account the old case of Sumner County v. Interurban Transportation Co, 141 Tenn. 493, 213 S.W.412 (1918), which held that a county could not sue a carrier for damages to streets absent state legislation authorizing it to do so, and the fact that there was no statutory authority for municipalities to sue carriers for street damage. Subsequent to my giving you that opinion, I researched the issue further and found a state statute giving the district attorney the right to sue carriers for damage to highways and streets but only under such limited conditions that the statute was extremely burdensome and impractical to apply in most cases. [See Tennessee Code Annotated, section 55-7-101 et seq.]
However, none of my research took into account Town of Newport v. Brewer, 566 S.W.2d 873 (1978), which expressly overturned Interurban Transportation Co., and which I ran across only yesterday in reading 53 ALR3d 1035 [Carrier's Liability for Highway Damage]. Brewer makes it clear that a municipality can sue a carrier for damages arising from the carrier's unreasonable use of the municipality's streets without any statutory authority to support the suit.
It does not appear in that case that the City of Newport had any vehicle weight or load limitations. The legal significance of that fact may be that if a city has such limitations the carrier can argue that his use of the city's streets is not unreasonable if it is in compliance with them. However, I do not think the outcome of Brewer would have been any different if the city had adopted weight limitations and the carrier had been in compliance with them. That case appears to turn on the fact that the streets in question were not designed to carry the incessant heavy loads to which the carrier subjected them, that the streets were indeed torn up by the carrier, and that the carrier knew he was tearing them up.
Brewer is worth your consideration.
Sidney D. Hemsley
Senior Law Consultant