Dobson v. State

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

__________________________________________ FILED
December 29, 1999
DIANNE DOBSON AND HER Cecil Crowson, Jr.
HUSBAND, MIKE DOBSON, Appellate Court Clerk
Claimants-Appellants,
Claims Commission No. 96001673
C.A. No. W1999-02014-COA-R3-CV
Vs.

STATE OF TENNESSEE

Defendant-Appellee

___________________________________________________________________

FROM THE TENNESSEE CLAIMS COMMISSION
THE HONORABLE W.R. BAKER, COMMISSIONER

Gayden Drew IV of Jackson
For Appellants

Beauchamp E. Brogan, General Counsel and Secretary
Lisa Karen Atkins, Assistant General Counsel

AFFIRMED

Opinion filed:

W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.

CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE
 This is a premises liability case arising from a fall by plaintiff on the University

of Tennessee at Martin (referred to herein as UTM) campus. Plaintiffs, Dianne

Dobson, and her husband Mike Dobson, appeal from the judgement of the Claims

Commission denying the relief sought against defendant, State of Tennessee

(referred to herein as State) and dismissing their claim.

On September 30, 1996, Ms. Dobson and her husband filed a complaint

against the State with the Claims Commission. The complaint alleges that as a
result

of her fall on the UTM campus Ms. Dobson sustained serious and permanently

disabling injuries and that the fall was proximately caused by the dangerous

condition of the premise, which is State controlled real property. Specifically, the

complaint alleges that Ms. Dobson was walking in a safe manner across the lawn of

the Health Center on her way to enter the building and suddenly and without

warning, tripped and fell on a metal landscape border that had been installed

abutting the sidewalk entering the building.

At trial before the Claims Commission Ms. Dobson testified that on May 2,

1996 she was injured when she fell outside the south entrance of the Student Health

Center building on the UTM campus. At the time of her fall she was on the campus

to deliver a golf shirt to Dr. Shore, one of three doctors that her employer, Health

South Cain Creek, was sponsoring in a golf tournament scheduled for that afternoon.

According to the record Health South Cain Creek, a physical rehabilitation facility,

sponsored doctors in this golf tournament by paying their fees and giving them golf

shirts to wear as part of a public relations effort for the facility. Ms. Dobson testified

that she learned that she was to deliver the shirts that same morning, when she

received a telephone call at work from Necie Barroni, the head of the facility, who

requested that Ms. Dobson personally deliver the shirts to Drs. Lyerly, Jones, and

Shore. Ms. Dobson testified that Ms. Barroni was attending a retreat in Union City at

the time that she telephoned her and requested that she make the three hand

deliveries.

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 Ms. Dobson testified that after receiving the telephone request, she went to

another building in the facility where Ms. Barroni’s office was located and retrieved

the three shirts. She then got into her van and left Cain Creek at approximately 9:15

a. m. to make the hand deliveries, starting at Dr. Lyerly’s office. The record contains

contradictions in the testimony of Ms. Dobson’s deposition testimony and her trial

testimony as to where she proceeded from that point. In her deposition Ms. Dobson

testified that she then proceeded to Dr. Jones’s office, located at the Specialty Clinic,

to deliver Dr. Jones’s shirt personally and spoke with both Dr. Jones and his

receptionist, and then proceeded to deliver Dr. Shore’s shirt. However at trial Ms.

Dobson testified that she left Dr. Jones’s shirt with Dr. Lyerly and then proceeded to

the Martin Medical Center, where she believed Dr. Shore to be working. At trial Ms.

Dobson explained the discrepancy in the two statements stating that she was

confused at her deposition.

Ms Dobson testified that at the Martin Medical Center, she was informed by

the receptionist that Dr. Shore was working at the UTM Health Center on that

morning. Ms. Dobson stated that she asked front desk workers at the Martin

Medical Center for directions to the Health Center and was told that the building

was a white house.1 Ms. Dobson then proceeded to the UTM campus to deliver Dr.

Shore’s shirt.

Ms. Dobson testified that she had never been to the area of the UTM campus

where the Health Center is located. As she was driving on the campus trying to

locate the Health Center she spotted Dr. Shore going up stairs to a building and

realized that this is where she needed to go. Ms. Dobson then parked her van in a

yellow zone on the street adjacent to the Health Center. Ms. Dobson testified that

she did not see the front door to the Health Center, nor was she aware that she had

parked in a yellow zone. She then proceeded across the lawn toward the south

entrance of the Health Center, where she recently saw Dr. Shore enter. Ms. Dobson

was wearing sunglasses at the time, but testified that, if anything, they helped her

1
The record reveals that the UTM Health Center is a building of red brick and
white siding.

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visibility, as it was a sunny day. As she stepped from the grass to the sidewalk

leading to the south entrance she tripped and fell on her right knee, left elbow, and

face. Ms. Dobson testified that a young woman, who apparently had been walking

down the street, immediately approached her and asked if she was hurt. Ms.

Dobson responded affirmatively, and the young woman went to the south entrance

of the Health Center to get help.

The record reveals that Dr. Shore and LPNs Barbara Moore and Nancy

Hastings were working at the Health Center at the time of Ms. Dobson’s fall.

Barbara Moore testified that she and Nancy Hastings both initially responded to the

young woman’s call for help. According to Ms. Moore, Ms. Hastings then went to

retrieve Dr. Shore and she remained with Ms. Dobson. The record reveals that an

ambulance was summoned and Ms. Dobson was taken to Volunteer General

Hospital in Martin, then to the Med in Memphis on the following day, and then to

Germantown Methodist Hospital. The record further reveals that Ms. Dobson’s right

leg had been broken in eight places and her left arm had been broken in fourteen

places.

The State put on proof that the metal sidewalk border was installed

approximately one year prior to Ms. Dobson’s fall as a safety precaution to prevent a

slip and fall hazard to employees using the south entrance at the rear of the Student

Health Center. The record reveals that the hazard had been caused by mud pooling

on the sidewalk in front of the entrance in rainy weather. The mud pooling was

caused by the east area of the property being lower than the west area, which

resulted in a water flow that washed mud across the sidewalk. The border was

installed adjacent to the sidewalk, but not extending over or on to the sidewalk, to

serve as a barrier between the sidewalk and the mud that washed downhill. The

border was two inches high and five feet long. Wanda Hall, a University of

Tennessee safety officer, testified that there is a designated parking area outside

the clinic for visitors to the clinic. The record reveals that this parking area is

identified by a sign reading “Student Health Parking Only” and has parking capacity

for eight cars, but that only three cars were parked there on the day of the accident.

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Visitors are allowed to park in any lot on the campus, even those that are marked

restricted, and publications regarding visitor parking are available at the campus
traffic office.

The cause was heard by a commissioner sitting by designation. At the

conclusion of proof the commissioner ruled from the bench that the condition of the

university premises on which Ms. Dobson fell was not dangerous, and there was no

need to compare relative negligence because over one-half of the negligence was

attributed to Ms. Dobson and not to the State.

With regard to his decision that the State did not create a dangerous

condition the commissioner stated:

[d]angerous conditions don’t exist in the abstract; they

exist relative to circumstances. And I think here particularly in relation to use. A

condition that is dangerous for ingress and egress might not be dangerous for a \

lawn. It’s in that connection that I say relative – at least relatively speaking, the

condition that we’re talking about here was not dangerous because even if it were

considered dangerous for a passageway it was not dangerous for a lawn. Of

course, whatever condition was there, there’s no doubt that what ever condition was

there the university created. The question is whether the condition was

dangerous. It was dangerous only for somebody who was using the lawn for

a sidewalk whereas if they had used a sidewalk for a sidewalk it would not

have been dangerous. (Emphasis added).

As to comparative negligence the commissioner ruled that Ms. Dobson was

more at fault than the State stating: “I have to think predominantly about this

claimant putting herself in a position that she didn’t need to put herself into, that she

could have spared herself by such common things as parking in the area where

there were three or four spaces for her to park, going in the main entrance, walking

on [the] sidewalk...” The commissioner stated that he sympathized with the

claimant’s state of mind having been given bad directions and being frustrated

stating: “ I personally am inclined to not pay any attention to whether I’m parking in a

parking zone or in a no-parking zone. I personally am inclined to walk across the

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grass instead of following a sidewalk...” However the commission ruled that the

State was not responsible. An order was entered denying the claim. It is from this

order that the Dobsons appeal.

The Dobsons present the following four issues on appeal:

I. Did the evidence preponderate against the Claims
Commissioner’s holding that there did not exist a
dangerous condition on state controlled real
property?

II. Did the evidence preponderate against the Clams
Commissioner’s holding that Dianne Dobson’s
accident was caused by negligence of which at
least fifty percent (50%) was attributed to her?

III. If the answer to the previous two issues is in the
affirmative, what percentage of comparative
negligence, if any, should have been attributed to
Dianne Dobson?

IV. If the answer to the first two issues is in the
affirmative, what compensatory damages should
have been awarded to the claimants after the
reduction of Dianne Dobson’s comparative
negligence, if any?

We conclude that appellants’ four issues presented for review may be

restated as whether the evidence in this case preponderates against the

commissioner’s ruling that there was no dangerous condition created by State

employees, and whether the evidence preponderates against his conclusion that

there was “no need to compare relative negligence here because beyond any doubt

over half of the negligence here is attributable to the plaintiff and not to the State.”

This is a direct appeal from the Tennessee Claims Commission and is

governed by the Tennessee Rules of Appellate Procedure. T.C.A. § 9-8-403(a)(1)

1999. Since this is a nonjury case, we review the case de novo upon the record

with a presumption of correctness of the findings of fact by the commission. Unless

evidence preponderates against the findings we must affirm, absent error of law.

Sanders v. State, 783 S.W. 2d 948 (Tenn. Ct. App. 1989); T.R.A.P. 13(d).

Ms. Dobson asserts that her accident was solely and proximately caused by

the negligence of university officials in putting down the metal landscape border and

in failing to ensure that the border was completely visible to persons walking across

the grass. She asserts that the grass around the border should have been trimmed

6
with a weed eater on a regular basis or the border painted a bright color to alert

pedestrians to its location. Ms. Dobson argues that another option for the university

was to post warning signs. Ms. Dobson further asserts that the State employees

could have abated the problem of the mud washing over the sidewalk by placing sod

in the area to prevent water flow from carrying mud on to the sidewalk. Ms. Dobson

contends that sod would have been a safe and effective solution to the hazard

caused by the washing of mud, as opposed to the border which Ms. Dobson asserts

was not a safe solution. Ms. Dobson argues that it is somewhat ludicrous to

suggest that it was not foreseeable for someone to walk across the grass where she

fell and that the metal sidewalk border amounted to a hidden and dangerous trap,

which she could not avoid although she exercised due care for her own safety. Ms.

Dobson contends that the evidence preponderates against the commissioner’s

ruling that the metal sidewalk border did not constitute a dangerous condition and

that Ms. Dobson’s fall was caused by negligence which was at least fifty percent

50% attributable to her. In addition Ms. Dobson claims to be responsible for very

little comparative fault, if any.

In response to Ms. Dobson’s contention that putting down sod would have

been a safer alternative, the State asserts that grass growing in the area (regardless

of the amount) was inadequate to stop water from running down hill and carrying

mud onto the sidewalk. The State contends that the installation of the border was in

accordance with the university’s legal obligation to furnish a workplace free of

recognized hazards that are likely to harm or injure employees. The mud on the

sidewalk constituted a recognized danger, and the installation of the border was an

appropriate abatement of the hazard. The State asserts that the border presented

no hazard to anyone using the side walk in its ordinary and customary fashion, and

that the border would be visible to anyone walking on the sidewalk.

The State asserts that the commissioner’s finding that Ms. Dobson was more

at fault for her injury than the State was not in error. The State contends that Ms.

Dobson was in a hurry to catch Dr. Shore and consequently failed to take adequate

measures to insure her own safety. She illegally parked along the curb that was

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painted yellow, and that had she parked in a designated parking area there would

have been no need for her to cut across the grass to reach either entrance to the

building, but instead she could have reached the building by one of the sidewalks

that lead to the Health Center building.

The State further asserts that because of Ms. Dobson’s haste in trying to

catch Dr. Shore, she did not see the main entrance and cut across the grass, past

the most accessible entrance, on a path that was not designated or worn to indicate

that the route she took was used by others.

The jurisdiction of the Tennessee Claims Commission was invoked pursuant

to T. C. A. § 9-8-307(a)(1)(C) which states:

9-8-307. Jurisdiction – Claims –Waiver of action
–Standard for tort liability – Damages – Immunities –
Definitions – Transfer of claims. – (a)(1) The commission
or each commissioner sitting individually has exclusive
jurisdiction to determine all monetary claims against the
state based on the acts or omissions of “state
employees,” as defined in § 8-42-101(3), falling within
one (1) or more of the following categories:

* * * * * *
(C) Negligently created or maintained dangerous
conditions on state controlled real property. The
claimant under this subsection must establish the
foreseeability of the risk and notice given to the proper
state officials at a time sufficiently prior to the injury for
the state to have taken appropriate measures;

T. C. A. § 9-8-307(a)(1)(C) (Supp.1998).

T.C.A. § 9-8-307(a)(1)(C) limits recovery to claimants who meet the

requirements enumerated in the statue. “The purpose of this statue is to ensure that

the State will not be held liable unless the circumstances are such that a private

individual in the State’s place would also be liable.” Byrd v. State, 905 S.W.2d 195

(Tenn. Ct. App. 1995) (citing T.C.A. § 9-8-307(d); Sanders v. State, 783 S.W. 2d

948, 951 (Tenn. Ct. App. 1989)). The plaintiff has the burden of proof to establish

that the State negligently created or maintained a dangerous condition, that the risk

presented by the dangerous condition was foreseeable, and that notice had been

giving to the proper official prior to the injury in time sufficient to take remedial

action. Hames v. State, 808 S.W. 2d 41, 44 (Tenn. 1991). In Hames the Court

further states:

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 For the purposes of determining liability under the statue,
the State is to be treated as a private individual. T.C.A. §
9-8-307 (a)(3), (d). Thus, for the purposes of deciding
the States’ liability after removal of immunity, the statue
codifies the common law obligation of owners and
occupiers of land. Sanders v. State, 783 S.W. 2d 948,
951 (Tenn. App. 1989). We note that any discussion of
‘negligently created or maintained conditions,’
‘reasonable care,’ and ‘foreseeability of risk’ inescapably
involves traditional principles of negligence law generally,
these being: (1) a duty of care owed by the Defendant to
the Plaintiff; (2) conduct failing below the applicable
standard of care amounting to a breach of that duty; (3)
an injury or loss; (4) causation in fact; and (5) proximate,
or legal, cause.

Id. (Citing McCleanahan v. Cooley, 806 S.W. 2d 767 (Tenn. 1991).

Duty, the first element of the claim, is the legal obligation a defendant owes to

a plaintiff to conform to the reasonable person standard of care in order to protect

against unreasonable risks of harm. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.

1995). In order to prevail in a negligence suit, a plaintiff must prove that the

defendant owed the plaintiff a duty of care; that defendants conduct fell below the

standard of care amounting to a breach of that duty; injury; cause; and proximate

cause. Byrd, 905 S.W.2d 196.

The existence and scope of the duty of the defendant in a particular case

rests on all the relevant circumstances, including the foreseeability of harm to the

plaintiff and other similarly situated persons. Pittman v. Upjohn Co., 890 S.W.2d

425, 433 (Tenn. 1994).

In cases involving premises liability, the premises owner has a duty to

exercise reasonable care under the circumstances to prevent injury to persons

lawfully on the premises. Eaton v. McLain, 891 S.W.2d 587, 593-94 (Tenn. 1994).

This duty is based upon the assumption that the owner has superior knowledge of

any perilous condition that may exist on the property. Kendall Oil Co. v. Payne, 41

Tenn. App. 201, 293 S.W.2d 40, 42 (1955). The duty includes the obligation of the

owner to maintain the premises in a reasonably safe condition and to remove or

warn against latent or hidden dangerous conditions on the premises of which the

owner is aware or should be aware through the exercise of reasonable diligence.

Eaton, 891 S.W.2d at 593-94. The duty of a premises owner is “a duty of

9
reasonable care under all circumstances.” Jones v. Exxon Corp., 940 S.W.2d 69,

71 (Tenn. Ct. App. 1996). The scope of this duty is grounded upon the

foreseeability of the risk involved. Id. at 72. Thus, in order to prevail in a premises

liability action, the plaintiff must show that the injury was a reasonably foreseeable

probability and that some action within the defendant’s power more probably than

not would have prevented the injury. Doe v. Linder Constr. Co., 845 S.W.2d 173,

178 (Tenn. 1992).

Traditionally, liability was not imposed on a premises owners by courts of this

state for injuries that resulted from defective or dangerous conditions that were

“open and obvious.” See McCormick v. Waters, 594 S.W.2d 385 (Tenn. 1980);

Kendall Oil Co. v. Payne, 41 Tenn. App. 201, 293 S.W .2d 40 (1955). In cases

after the decision of the Tennessee Supreme Court in McIntyre v. Balentine, 833

S.W. 2d 52 (Tenn. 1992) liability in premises liability actions has been determined

according to the principles of comparative fault:

[w]hen an invitee is injured because of dangers that are
obvious, reasonably apparent, or as well known to the
injured party as to the owner or operator of the premises,
liability, if any should be determined in accordance with
the principles of comparative fault analysis and the
general negligence law of this state.

Jones, 940 S.W. 2d at 72 (quoting Cooperwood v. Kroger Food Stores, Inc., No.

02A01-9308-CV-00182, 1984 WL 725217 (Tenn. Ct. App. W.S. Dec. 30,1994)). The

Supreme Court of Tennessee recently provided further guidance for determining

liability in Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998). The Coln Court

held:

the duty issue must be analyzed with regard to
foreseeability and gravity of harm, and the feasibility
and availability of alternative conduct that would have
prevented the harm.

Id. at 43. (Emphasis added).

The commissioner found that Ms. Dobson was not using the path in its

ordinary use and that the path was not dangerous in terms of common experience

as there had been no previous injury there. The evidence does not preponderate

against the commissioner’s finding that the state did not create a dangerous

10
condition when it installed the border to prevent mud from washing across the

sidewalk and the consequential slip hazard. In applying the Coln Court’s analysis to

the instant case we do not think that the State breached its duty to Ms. Dobson as

the gravity of harm which befell her was not foreseeable. Ms. Dobson was not using

the sidewalk in its customary manner. The State could not foresee that Ms. Dobson

would park in a no parking zone and proceed across the lawn in a hurried manner

with little regard for her own safety to enter the south entrance when the main

entrance was the closest entrance to where she parked. Upon review of the record

the main entrance appears to us to be the most obvious selection between the two

entrances to the Health Center. Ms. Dobson has suggested alternative

procedures that she asserts would have both prevented the mud, slip hazard

present in front of the south entrance and that would have been safer. However, we

do not believe that the evidence preponderated against the commissioner’s finding

that there was successful rebuttal to Ms. Dobson’s argument that the placement of

sod in the area was a safer alternative, or to the finding that there was successful

rebuttal to Ms. Dobson’s contention that the State failed to properly maintain the

grass so that the border was not visible to Ms. Dobson. No acceptable alternative

presented by Ms. Dobson was proved to be a feasible alternative to the border in

preventing the mud hazard.

Ms. Dobson has not shown that her fall was foreseeable and she has not

proved the feasability of alternative conduct. It is therefore our opinion that

evidence does not preponderate against the commissioner’s finding that the border

was not a dangerous condition created by the State,

The Commissioner concluded that the proximate cause of Ms. Dobson’s injury

was a failure on her part to exercise ordinary care for her own safety demonstrated

by her using the lawn for a sidewalk, parking in a no-parking zone, and “cutting

corners in order to catch (Dr. Shore) before he got into his ordinary routine.”

Although we have sympathy for Ms. Dobson, we cannot escape the fact that in this

case she should be charged with the responsibility of exercising reasonable and

ordinary care for her own safety. “The State is not the insurer of those who enter

11
 upon its facilities.” Byrd, 905 S.W.2d at 197 (citing Atkins v. City Finance Co.,

683 S.W. 2d 331, 332 (Tenn. Ct. App. 1984); Paradiso v. Kroger Co., 499 S.W.2d

78, 79 (Tenn. Ct. App. 1973)). The commissioner concluded that the proximate

cause of Ms. Dobson’s injury was her own failure to ensure her own safety. The

evidence does not preponderate against the commissioner’s finding that the State is

not responsible for Ms. Dobson’s injury. Accordingly, the judgment of the

Commissioner is affirmed, and costs of the appeal are assessed against the

appellants, Diane Dobson and Mike Dobson.

_________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE,W.S.

CONCUR:

________________________________
DAVID R. FARMER, JUDGE

________________________________
HOLLY KIRBY LILLARD, JUDGE

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