APPELLATE COURT OPINIONS

I concur with Judge Ogle’s opinion concerning the issue of sufficiency of the evidence to sustain the conviction for first degree murder and the issue regarding the suppression of identification testimony. I concur that the trial court did not err by refusing to charge voluntary manslaughter as a lesser-included offense.  I also concur that the trial court erred by failing to charge second degree murder as a lesser-included offense. However, I dissent from the majority opinion’s conclusion that this error was not reversible error.

The lead opinion of Judge Ogle, the separate concurring opinion of Judge Welles, and the separate opinion of Judge Woodall concurring in part and dissenting in part, filed in this case on March 6, 2000, are withdrawn.

This appeal from the Circuit Court of Blount County concerns liability under the Tennessee Governmental Tort Liability Act, which grants immunity, subject to certain statutory exceptions, to governmental entities pursuant to Tennessee Code Annotated § 29-20-201. Cynthia Y. Long, the Plaintiff/Appellant, appeals the Trial Court’s judgment on directed verdict in favor of the City of Maryville, the Defendant/Appellee.

I dissent because I do not find that the evidence preponderates against the trial court’s judgment dismissing the plaintiff’s complaint. In fact, there is precious little evidence in the record bearing on the culpability of the City of Maryville (“the City”). In my judgment, the proof shows little more than that the plaintiff slipped and fell on icy pavement in a city park at a place near a functioning water fountain on a day when the temperature was at or below freezing. What the evidence does not show is negligence of an employee of the City; notice to the City of a condition of the type described in T.C.A. § 29-20- 203(a); or the necessary causal connection between actionable conduct on the part of the City and the plaintiff’s fall.