IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
FILED
GEORGIA CROSS and )
NEWMAN CROSS, ) April 22, 1999
)
Plaintiffs/Appellees, Cecil Crowson, Jr.
) Shelby Circuit No. 72984 T.D.
) Appellate C ourt Clerk
VS. ) Appeal No. 02A01-9807-CV-00199
)
CITY OF MEMPHIS, )
)
Defendant/Appellant. )
APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
AT MEMPHIS, TENNESSEE
THE HONORABLE GEORGE H. BROWN, JR., JUDGE
JONATHAN E. SCHARFF
BRETT A. HUGHES
HARRIS, SHELTON, DUNLAP & COBB, L.L.PC.
Memphis, Tennessee
Attorneys for Appellant
CANNON F. ALLEN
MONTE B. SERNEL
ARMSTRONG ALLEN PREWITT GENTRY
JOHNSTON & HOLMES, PLLC
Memphis, Tennessee
Attorneys for Appellees
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
Defendant City of Memphis (“City” or “Appellant”) appeals the judgment of the trial
court awarding Plaintiff Georgia Cross (“Mrs. Cross” or “Appellee”) the sum of $130,000
for loss of enjoyment of life, permanent physical disability and pain and suffering arising
from a slip and fall at a Memphis public library, and awarding Newman Cross (“Mr. Cross”
or “Appellee”) $118,300 for his past and future loss of consortium and services of his wife,
Mrs. Cross ($39,500 past loss, $78,000 future loss) .
I. Factual and Procedural History
Mrs. Cross visited the Memphis City Library known as the Poplar/White Station
Public Library, with her four children, ages ten, seven, five and one, on November 28,
1994. Mrs. Cross had been visiting this library since she was a child and had been going
to this library for the children for a four-year period preceding the accident.
The walk ramp at the library was built in 1981 and was not changed since that time
other than the addition of a hand rail. The walk ramp ran in a downward slope from the
front entrance of the library to the base of the walk ramp. The ramp had curb cuts that
extended on both sides at the foot of the walk ramp and each curb cut was painted yellow.
The City of Memphis stipulated that the yellow painted curb cut was not in compliance with
the City’s construction code.
Mrs. Cross parked her vehicle along the yellow painted curb cut. As she exited her
car, along with her four children, Mrs. Cross cut across the grass but noticed the handrail
had been placed on the west side of the ramp. She thought this was to keep people from
cutting across the grass, so she proceeded directly to the walk ramp. Mrs. Cross was
holding her youngest child on her right hip as she approached the walk ramp. As she
stepped up on the yellow curb cut with her right foot, her foot slid and her ankle
immediately gave and broke. Mrs. Cross broke her ankle in three places. She was
bedridden for months after the accident and now has traumatic arthritis with a great deal
of pain.
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On September 27, 1995, the Crosses filed a negligence action against the City
under the Tennessee Governmental Tort Liability Act (the “GTLA”), Tenn. Code Ann. §29-
20-101. Mrs. Cross sought damages for her slip and fall and Mr. Cross sought damages
for loss of consortium and future loss of consortium.
In July of 1997, three and one half years after the accident, but before the trial in this
matter, Mr. Cross was diagnosed with Amyotrophic Lateral Sclerosis (ALS), a fatal illness
commonly known as Lou Gehrig’s Disease. The disease causes the muscles to
deteriorate throughout the body of the affected individual, and generally allows for a life
expectancy of two to five years without the aid of a ventilator and feeding tube. Although
it is not possible to predict the length or time period that the disease will progress in Mr.
Cross, at some point in time he will be bed-ridden and eventually placed on a respirator to
assist breathing. At some point he will need 24 hour assistance to help him with his daily
routine.
The case was tried without a jury on May 12 and May 13, 1998. The trial court found
that the City negligently maintained a latent defect at the library, the City’s immunity was
removed and the City was on notice that the curb cut was in a defective and dangerous
condition before Mrs. Cross injured her ankle. The trial court found the City to be 100% at
fault and awarded Mrs. Cross $130,000 for her injury.
The trial court awarded Mr. Cross $39,500.00 for his loss of consortium damages
for the period of time between the accident and the trial. The court also awarded Mr. Cross
$78,000.00 for future loss of consortium, finding that Mr. Cross will need care in the future
that Mrs. Cross will be unable to provide because of her ankle injury. This appeal by City
followed.
II. Apportionment of Fault
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After considering all the evidence at trial and the entire record in this case, the trial
court made the following findings of fact with regard to fault:
2. The curb cut where the plaintiff fell was located in close
proximity to a handrail which the City had installed prior to the
accident date. The curb cut, handrail and ramp area were
dented [sic] a hazardous condition.
3. The area where plaintiff stepped was hazardous to
pedestrians as a result of three elements: (a) The City of
Memphis installed the handrail next to the curb cut which
invited patrons to step on the defective curb cut; (b) The
parties stipulated that the curb cut and ramp area did not meet
the specifications of the Tennessee Building Code in that they
were substantially too steep; and (c) The curb cut was
constructed with pea gravel which was a slick and would polish
over time.
4. The City was on notice that the curb cut was hazardous
before Mrs. Cross fell and injured herself. Prior to her injury,
other patrons had fallen on the ramp and in the area of the
curb cut. The City admitted that the curb cut did not comply
with the Tennessee Building Code at the time that the curb cut
was installed. The hazardous condition was not obvious. It was
a latent condition not obvious to patrons.
The trial court then found that: (1) The City had a duty to Mrs. Cross to maintain its
premises in a reasonably safe condition; (2) The City breached that duty because the curb
cut, ramp, and handrail combined to create a dangerous and defective condition; (3) The
City was on notice of the latent, dangerous and defective sidewalk and therefore the City’s
immunity was removed; (4) The negligence of the City was the sole cause in fact and the
proximate cause of the injuries to Mrs. Cross and the loss of consortium suffered by Mr.
Cross; and (5) Georgia Cross was not at fault in any way in connection with her injury. She
maintained a reasonably safe look out to protect herself from injury. The defective and
dangerous condition was not obvious.
On appeal, the City contends that Mrs. Cross failed to use reasonable care under
the circumstances and accordingly, she was at fault for more than 51% of the accident
based on Tennessee’s comparative fault law, and should be barred any recovery. The City
argues that Mrs. Cross was familiar with this walk ramp as she had visited the premises
for years prior to her fall. The City contends that the yellow paint on the curb cut
distinguished it from the rest of the walk ramp. The City argues that Mrs. Cross failed to
exercise the necessary precaution and to maintain awareness of where she was stepping
while carrying a 33-pound, one-year old child in her arm. The City points to Mrs. Cross’s
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testimony that she was watching her children run ahead of her.
This matter was tried to the court without a jury. A trial court acting as trier of fact
has considerable latitude in allocating percentages of fault to negligent parties and
appellate courts may alter those findings if they are clearly erroneous. Coln v. City of
Savannah, 966 S.W.2d 34, 44 (Tenn. 1998). After hearing all the evidence in this matter,
the trial court assessed the negligence of the parties at 100% fault to the City and 0% fault
to Mrs. Cross. This Court will alter this allocation of negligence only upon finding that the
apportionment of the trial court was clearly erroneous.
At trial, Mrs. Cross testified that she was not in a hurry and she was paying attention
to where she was going. On cross examination, Mrs. Cross stated, ”I obviously looked to
see where to step to know to step up. I knew where my children were, but not necessarily
distracted by what they were doing that I didn’t know where the handrail was.” Mrs. Cross
testified that she noticed the yellow on the curb but it had no particular meaning to her
other than possibly meaning not to park there. Plaintiff’s expert, William Beaty, testified that
there were no regulations or specifications which state what the color yellow means.
There is evidence in the record that the City knew the curb cut was defective and
dangerous. Carol Share, the Poplar/White Station library manager, complained on various
occasions to library management about patrons falling at the curb cut. Merle Richardson,
the Assistant Director for Support Services for the Memphis and Shelby County Library
System, admitted that the handicapped ramp area was causing patrons to fall. Dan Jones,
the Facility Manager for the library system, had been charged with the responsibility, prior
to Mrs. Cross’s injury, of investigating the curb cut and determining why it was dangerous
and defective, and how it should be fixed. Additionally, expert William Beaty stated that,
“I don’t think the average person would see that there’s a danger there . . . It’s not an
obvious hazard.”
There was testimony that the City decided to place a handrail in the center of the
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ramp to encourage patrons to stay away from the yellow caution curb points. Installing a
center rail would require the City to drill through concrete. Installing a handrail in the soil
next to the curb cut was considered “easier,” safer for city employees and more “aesthetic.”
Therefore, the City installed the handrail adjacent to the curb cut. The handrail was
installed approximately five days prior to Mrs. Cross’s injury. This location of the handrail
effectively drew patrons back to the defective area, rather than away from it. Additionally,
the location of the handrail tended to prohibit patrons from walking across the grass to
avoid the curb cut. The City admitted that the curb cut and ramp were too steep and out
of compliance with the Tennessee Code.
Upon our careful review of the evidence in the record and the presumption of
correctness afforded, this Court finds that the apportionment of fault by the trial court was
not clearly erroneous. The trial court’s apportionment of fault is affirmed.
III. Loss of Consortium
The trial court awarded Mr. Cross $118,000.00 for past and future loss of
consortium ($39,500.00 past, $78,800.00 future). The City contends that the trial court
erred in setting the amount of damages at $39,500.00 for loss of consortium from the time
of the injury to the time of trial, and erred in granting Mr. Cross any award for future loss
of consortium.
The amount to be awarded in personal injury cases rests largely in the discretion
of the trier of fact. Coakley v. Daniels, 840 S.W.2d 367, 372 (Tenn.App. 1992). The amount
allowable as damages for personal injuries in tort actions is not measured by fixed rules
of law, but rests largely in the discretion of the trier of fact and is entitled to great weight in
the appellate courts in the absence of a showing of fraud or corruption. Id.
The trial court awarded Mr. Cross the sum of $39,500.00 for his loss of consortium
up to the date of trial. The court arrived at that figure by finding that Mr. Cross was entitled
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to $11,000.00 per year as damages for loss of consortium. Since Mrs. Cross’s injury
occurred approximately three and one-half years prior to trial, the court determined Mr.
Cross’s loss of consortium amounted to $39,500.00.
The trial court also awarded Mr. Cross the sum of $78,800.00 for his future loss of
consortium. Mr. Cross was diagnosed with Amyotrophic Lateral Sclerosis (ALS), which
causes deterioration of the patient’s muscles and nervous system until death. Mr. Cross’s
future loss of consortium claim for damages arises from the loss of his wife’s services in
assisting him as his condition deteriorates.
In Moyer v. Herman, No. 87-119-II, 1987 Tenn.App. LEXIS 3208 (Tenn.App., August
12, 1987), the term consortium was explained as follows:
The term . . . has developed to include the right of the wife to
the society and comfort of the husband, and is now used
interchangeably to denote the affection, aid, assistance,
companionship, comfort, and society of either spouse; and as
thus employed the term has been defined as, those duties and
obligations which by marriage both husband and wife take on
themselves toward each other in sickness and health; conjugal
affection; conjugal fellowship; conjugal society and assistance;
the conjugal society arising by virtue of the marriage contract;
the consort’s affection, society, or aid; the person’s affection,
society or aid; the person, affection, assistance, and aid of the
spouse. The loss of consortium is the loss of any or all of these
rights.
From the above, it appears that damages for loss of
consortium arise when the wife is deprived of the company,
companionship and assistance of the husband in all those
matters in which the husband would have benefitted the wife
if he had not been injured.
In view of the recent statutory and judicial pronouncements on
the subject of the equality of spouses, the rights of consortium
need to be redefined to produce an equality of these rights,
that is, the rights of the husband and the wife to consortium
should be identical.
Id. at *18-*19.
The City argues first that the evidence preponderates against the award of loss of
consortium damages in the amount of $39,500.00 to Mr. Cross for the three and one-half
year period between the injury and trial. The City also asserts that the evidence
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preponderates against the award of future loss of consortium damages in the amount of
$78,000.00 to Mr. Cross and argues that there is no legal authority in Tennessee for
awarding damages for such a claim. We shall first address the award of past loss of
consortium damages.
The record contains the testimony of Mrs. Cross and Mr. Cross regarding the effects
the injury had upon their lives. For the first few months after the injury, Mrs. Cross was not
allowed to put any weight on her ankle. She was instructed to keep it elevated for six
weeks. Mrs. Cross was in a wheelchair after the injury, and later walked with the assistance
of crutches. The cast was taken off on February 6, 1995 and she then wore a Bledsoe boot
for some time. Mrs. Cross testified that the first 18 months were consumed with the ankle.
Mrs. Cross testified that after the injury she was unable to walk up stairs to her
bedroom so Mrs. Cross and her husband converted a downstairs room into a bedroom.
Mrs. Cross testified that she was unable to care for Mr. Cross during the first few months
after the injury. She recalled not being able to attend holiday parties, only attempting to
attend the Christmas programs of the children.
Mrs. Cross testified that after her cast was removed on February 6, 1995 her ankle
remained stiff, swollen and painful for months. She slept with her ankle above the covers
because the pressure of the covers caused her discomfort. By August 1995, her mobility
in the ankle was very limited and she was not able to do many things she used to do. Mrs
Cross testified it remains painful to ride a bike, drive a car, walk on sand, play tennis, ski,
walk up and down stairs, walk on a driveway or any slanted surface, and she can not walk
while carrying her youngest child. She testified that her ankle has not returned to normal.
She testified further that her life has never gotten back to normal after this accident in
terms of keeping the house. She is not able to do all of the things she could do before the
accident. The more she tries to keep up with her schedule, the more pain and swelling she
has.
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Mr. Cross testified as to the problems Mrs. Cross has had and how her injury
damaged their marital relationship. He testified that the first five days when Mrs. Cross was
in the hospital were absolute chaos and things were about the same when she came home
from the hospital. Mr. Cross testified that during the period of time from November 28,
1994 through May 1995, his wife was in pain 24 hours a day and he and his wife were not
able to tend to each other marital needs. He testified there were holiday activities that he
and his wife would have attended but for the injury.
According to Mr. Cross, Mrs. Cross slept downstairs for three to four months while
he slept in their bedroom upstairs near the children. Mr. Cross couldn’t recall if he was
keeping his same hours at the office during that time because it was harder for him to be
away because there was so much more he had to take on. Additionally, Mr. and Mrs. Cross
did not have as much quiet time at the end of the day because with the disrupted routine,
the children went to bed later and Mr. and Mrs. Cross were tired and went to bed earlier
than usual. Mr. Cross would get up in the mornings and help the children get dressed and
ready for school. According to Mr. Cross, the injury caused a great deal of stress for him
and anger at the situation that he felt could have been avoided. There was stress between
Mr. Cross and the children and stress at work as a continuation of that.
Mr. Cross testified that up through the date of trial, no day is easy for Mrs. Cross to
get around on her ankle. He sees her ankle at the end of the day and it is generally
swollen. He testified Mrs. Cross sleeps with her foot out from under the cover as the
downward pressure of the sheet hurts her ankle. He testified that Mrs. Cross wears a brace
on her ankle every day and she limps when she walks. He testified that life has never
gotten back to normal for the two of them, though she tries to do the same kinds of things
that she was able to do for him before the injury.
In this non-jury case, the trial judge’s decision to award Mr. Cross damages for his
loss of consortium hinges, at least in part, on witness credibility and should not be reversed
unless there is found in the record clear, concrete and convincing evidence to the contrary.
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Airline Const. Inc. v. Barr, 807 S.W.2d 247, 264 (Tenn.App. 1990).
The trial judge heard all the evidence and had the benefit of observing the parties
as they testified. There is evidence in the record that Mr. Cross has been denied the
company, companionship and assistance of his wife which he had before the accident. The
evidence does not preponderate against the award of the trial court in the amount of
$39,500.00 for past loss of consortium.
The trial court also awarded Mr. Cross the amount of $78,000.00 for future loss of
consortium. In July, 1997 Mr. Cross was diagnosed with ALS. The progression of the
disease is inevitable, devastating and fatal. Ultimately, Mr. Cross will be unable to walk or
move himself at will. He will be confined to his bed and be completely dependant upon the
assistance of others to care for him. Mr. Cross’s future loss of consortium claim is based
upon his wife’s inability to assist him as his condition deteriorates due to her injury.
The City first argues that a claim for future loss of consortium is not recognized in
Tennessee. We start from the general proposition that damages awarded in a personal
injury action must compensate for future as well as past suffering, since the injured person
can maintain but one action for his damages. Waller v. Skeleton, 212 S.W.2d 690, 700
(Tenn.App. 1948). In the case of Colonial Baking Co. v. Aquino, 103 S.W.2d 613
(Tenn.App. 1936), Mrs. Aquino was injured and Mr. Aquino sought damages for the loss
of past and future services of his wife at his pressing shop. The appellate court found that
the judgment awarded Mr. Aquino should be reduced, and that the sum of $5,000.00 would
fairly compensate him for the present and future losses and expenses sustained. Id. at
623.
Tennessee Pattern Jury Instructions, while not themselves law, instruct the jury on
the law governing the case and aid the jury in the determination of damages. Tennessee
Pattern Jury Instruction 3-Civil 14.20 (1997) provides in pertinent part:
If, in accordance with these instruction, you are to determine
damages for the plaintiff (injured spouse) you should also
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determine the damages for the plaintiff (other spouse). (Other
spouse) would be entitled to recover the following elements of
damage if established by the evidence:
3. The reasonable value of the injured spouse’s services
this plaintiff has lost [and the present value of such
services plaintiff is reasonably certain to lose in the
future;] and
4. The reasonable value of the spouse’s companionship
and acts of love and affection this plaintiff has lost [and
the present cash value of such acts plaintiff is
reasonably certain to lose in the future] but would have
received in the usual course of the parties’ married life.
Id. (emphasis added).
We can find no authority against the award of damages for future loss of
consortium. The general rule is that damages awarded in a personal injury action must
compensate for future as well as past suffering. Furthermore, the courts routinely instruct
juries, in awarding damages, to determine the present value of services a spouse is
reasonably certain to lose in the future. For these reasons, we find that it is not error for a
trial court to award damages for future loss of consortium.
The City claims that even if this Court were to recognize a claim for future loss of
consortium, the damages are purely speculative in this case. Tennessee law requires that
damages for loss of an injured spouse’s tangible services as an ordinary servant must be
proved with exactness. All v. John Gerber Co., 252 S.W.2d 138, 142 (Tenn.App. 1952).
The City contends that Mr. Cross’s claim that his wife, at some unknown point in the future
and for some unknown duration in the future, will be supposedly unable to provide him
assistance because of her ankle injury is too speculative.
In his videotaped deposition, Dr. Tulio E. Bertorini, M.D., testified that patients with
ALS will need someone to help them dress and undress, to use the restroom, to get in and
out of a wheelchair, to clean and bathe them and to give them medication. After the patient
has a gastrostomy, the patient will need someone to feed them through the gastrostomy.
When the individual requires a tracheotomy, they will need someone to suction the trach,
clean the trach, deflate, inflate and hook the individual up to a ventilator. At this point, the
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patient is generally bedridden and must be turned in the bed to avoid getting bedsores.
Dr. Bertorini testified that Mr. Cross has ALS. He testified that Mr. Cross will go
through all of these stages as the disease progresses although ALS progresses at different
rates in different people. He testified that Mr. Cross will, to a reasonable degree of medical
certainty, need full time care. He testified that he expected Mr. Cross, to a reasonable
degree of medical certainty, to be bed bound within two years of the date of his April 15,
1998 testimony.
Dr. Greer Richardson studied Mrs. Cross’s ankle in August 1995 and determined
that her ankle had developed traumatic arthritis as a result of her ankle fracture. Dr.
Richardson testified that traumatic arthritis occurs when the cartilage space which cushions
the joint is so badly traumatized that it begins to deteriorate and wear away. Ultimately, the
cartilage disintegrates and the joint bones rub and wear against each other causing great
pain, swelling and lost mobility. Dr. Richardson testified that in order to eliminate Mrs.
Cross’s right ankle pain, the joint will need to be fused. This will cause her to lose all
mobility in her right ankle and may ultimately cause knee and hip injury.
The parties stipulated to the testimony of Nancy Wilson, an R.N. with Baptist Trinity
Home Care agency and her videotaped deposition was made an exhibit. Wilson testified
that a female can have the physical ability to provide care to a male patient with ALS. She
testified that an ALS caregiver would need to have good body mechanics and have very
good balance. To assist a patient from bed to wheelchair, the patient would put hands on
the caregiver’s shoulders. The caregiver would grasp the patient under the arms and help
lift straight up and then pivot over and down in the chair. The caregiver is required to pivot
during this process.
Wilson further testified that once the patient is no longer able to move at all for
himself, dressing and bathing the patient is difficult because he has to be lifted. To feed
an ALS patient, the caregiver needs to lift the patient to a sitting position. To change the
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linens with the patient in bed, the caregiver has to roll the patient completely on the side
and change the bed one half at a time. W ilson testified that to change the bed linens a
caregiver would need good balance and strength.
According to Wilson, spouses can be trained to provide all this type of care and she
has had occasion to train spouses of patients with ALS. Wilson testified that a woman with
traumatic arthritis like Mrs. Cross would not be able to provide an ALS patient the custodial
care he would need because the lack of mobility in the ankle makes the risk of injury to the
patient too great.
Dr. Tulio Bertorini also testified that it is common for family members to care for ALS
patients. Dr. Bertorini testified that Mrs. Cross would have otherwise had the intellectual
ability to be trained to provide care to her husband. Dr. Richardson, Mrs. Cross’s
orthopedic surgeon, testified that in her current condition, Mrs. Cross cannot provide the
type of assistance Mr. Cross will need as a result of his disease.
Nancy Wilson testified as to the costs of caring for a patient with ALS. An exhibit
was introduced which laid out the ranges for cost of care for ALS patients as the patient’s
condition deteriorates. Depending upon the extent of care required, the cost ranges from
$39,420.00 to $242,360.00 annually.
In granting Mr. Cross a judgment for future loss of consortium damages in the
amount of $78,000.00, the trial court stated that it took a conservative view of those figures
included in Exhibit 1 under custodial care. We agree with the trial court that Mr. Cross’s
future loss of consortium is not speculative. This Court finds that the evidence does not
preponderate against the trial court’s award of damages for future loss of consortium.
IV. Conclusion
The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to
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Appellant, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
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