Morgan Ashlee Hood v. State of Tennessee

04/03/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 14, 2024 Session

MORGAN ASHLEE HOOD v. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission
No. T20192623-1 William A. Young, Commissioner
___________________________________

No. E2023-00773-COA-R3-CV
___________________________________

This appeal involves a decision by the Tennessee Claims Commission (“the
Commission”) awarding damages to the claimant for her injuries caused by the
negligence of a state employee. The Commission determined that an employee of the
University of Tennessee at Knoxville had created a dangerous condition by leaving a wet
tile floor in a dormitory bathroom and failing to warn the claimant, who was a resident of
the dormitory room, of the condition. The Commission found that the state employee’s
negligence had caused the claimant to fall and break her arm, thereby also causing her to
incur medical expenses and other damages. The Commission awarded damages to the
claimant and against the State of Tennessee (“the State”) in the amount of $187,398.23.
The State has appealed. Discerning no reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KRISTI M. DAVIS, J., joined.

Joshua R. Walker, Knoxville, Tennessee, for the appellant, State of Tennessee.

Alisha M. Toll, Goodlettsville, Tennessee, for the appellee, Morgan Ashlee Hood.

OPINION

I. Factual and Procedural Background

On October 16, 2019, the claimant, Morgan Ashlee Hood, filed a complaint in the
Commission against the State.1 Ms. Hood, who was a student at the University of
Tennessee at Knoxville (“UTK”) and a resident of the dormitory there known as South
1
Because UTK is an arm of the State, we will refer to the defending party generally as “the State.”
Carrick Hall (“Carrick”), stated that on April 16, 2019, at approximately 1:00 p.m., she
“slipped and fell in a puddle of liquid believed to be water and/or cleaning solution” upon
entering the tile hallway of her dormitory suite. Ms. Hood averred that the puddle of
liquid was created when a UTK housekeeping employee had cleaned the bathroom before
Ms. Hood entered and had failed to remove any excess liquid from the floor. Ms. Hood
stated that no signage warning of the condition was present even though the floor was
unusually slippery. Ms. Hood suffered a broken arm as a result of her fall.

Ms. Hood claimed that UTK had breached its duty to her to keep the premises in a
safe condition and to warn her of a latent defect. According to Ms. Hood, UTK had
created the dangerous condition by (1) failing to adequately inspect or maintain the
premises, (2) installing flooring that did not meet minimum safety standards for slip
resistance, and (3) failing to place signage or otherwise warn her of the dangerous
condition. Ms. Hood averred that because of UTK’s negligence, she sustained injury to
her right humerus, which required surgery and several months of rehabilitation and care.
Ms. Hood sought an award of damages in the amount of $300,000.00.

The State filed an answer on November 22, 2019, denying that any negligence had
occurred. On July 1, 2021, the State filed a motion for summary judgment, asserting that
there existed no genuine issues of material fact and that the State was entitled to
judgment as a matter of law. The State averred that the housekeeper assigned to Ms.
Hood’s dormitory suite, Angelia Hardy, had stated in her deposition that she did not clean
the bathroom for Ms. Hood’s suite until at least 2:15 to 2:30, after her afternoon break, as
was her daily routine. Ms. Hardy also stated that she always left the housekeeping cart in
the hallway while she was cleaning. Because Ms. Hood testified that she fell at
approximately 1:00 p.m. and that she had seen neither Ms. Hardy nor the cleaning cart,
the State asserted that the puddle could not have been caused by Ms. Hardy. In addition,
although Ms. Hood stated that she had only been in her room for approximately fifteen
minutes before entering the bathroom hallway, Ms. Hardy testified that it took her
approximately twenty minutes to clean the bathroom. Moreover, Ms. Hardy explained
that she always knocked on the door and announced, “housekeeping,” before entering the
suite.

In support of its motion for summary judgment, the State filed a statement of
undisputed facts, and Ms. Hood filed a response to the motion and the statement of
undisputed facts. Ms. Hood concomitantly filed a statement of additional undisputed
material facts, including that (1) none of Ms. Hood’s suite mates were present from the
time she returned to her room until after the time she fell; (2) Ms. Hood was watching
television and did not hear Ms. Hardy announce her presence; (3) the entire floor of the
suite bathroom was wet when Ms. Hood fell; (4) the liquid on the floor smelled like
cleaning solution; (5) Ms. Hardy testified that mopping the floor was the last task she
would accomplish before moving on to the next room; (6) Ms. Hardy stated that cleaning

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a bathroom would take twenty minutes “tops”; and (7) Ms. Hardy stated that after
mopping the floor, she would leave the floor to dry on its own.

Following the filing of an additional response by the State, the Commission
entered an order on November 5, 2021, denying summary judgment upon finding that
genuine issues of material fact existed precluding summary judgment. Thereafter, Ms.
Hood filed a motion to amend her complaint to seek compensatory damages in the
amount of $282,398.23.2

On May 1, 2023, the Commission entered a judgment in favor of Ms. Hood,
following a bench trial conducted on January 11, 2023, wherein Ms. Hood and her
mother were the only live witnesses. The Commission also received and considered
evidence via deposition from Ms. Hardy and Ms. Hood’s treating physician. In its
judgment, the Commission found that it maintained subject matter jurisdiction in this
matter pursuant to Tennessee Code Annotated § 9-8-307(a)(1)(C) and that such
jurisdiction was not in dispute.

The Commission found that Ms. Hood had “sustained an injury to her right arm on
April 16, 2019, in her dormitory suite bathroom.” The Commission noted Ms. Hood’s
testimony that on that day, she had attended a class, left class, proceeded to a fast-food
restaurant to get her lunch, and then returned to her dormitory suite at “around 1:15.”
Upon returning to her suite, Ms. Hood was the only person there. When she entered, she
crossed the tile floor leading to the bathroom in her tennis shoes, observed no puddle or
water on the floor, and did not slip. The Commission found that Ms. Hood did not spill
anything on the floor or otherwise cause the floor to be wet. The Commission further
found that besides the four residents of the suite, no one other than UTK custodial staff
would have reason to be present in the suite’s bathroom.

The Commission determined that after Ms. Hood arrived in her room, she ate her
lunch and watched television for a period of “probably 15 or 20 minutes.” Ms. Hood
testified that she was watching television and using earphones and that the door to her
bedroom was closed. According to Ms. Hood, she then went outside her door, barefoot,
to the outer bathroom area of the suite, where the floor was “completely wet,” and
immediately slipped and fell, catching herself with her arm. Ms. Hood testified that the
bathroom was “completely saturated and it had a strong smell of cleaning solution as if
the housekeeper was there.” Ms. Hood stated that she had not smelled this odor in the
bathroom area when she initially returned from class. Ms. Hood also testified that her
clothes were wet from her fall and that she felt the need to change into dry clothes before
being transported to the hospital. Ms. Hood was admitted to the emergency room at Fort
Sanders Hospital at 1:54 p.m.

2
The Commission granted this motion to amend at the beginning of trial.
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 The Commission found that the bathrooms on Ms. Hood’s floor in Carrick were
cleaned on Tuesdays, according to Ms. Hardy’s testimony, and that this event occurred
on a Tuesday. Although Ms. Hood did not see the housekeeper or a cart on the day in
question, she testified that it was common to not see the cleaning cart when housekeeping
was cleaning the floor. The Commission fully credited Ms. Hood’s version of the events
of that day, including that if Ms. Hardy had knocked on the outer door, Ms. Hood would
not have heard the knock.

The Commission determined that Ms. Hood had suffered a broken arm, requiring
surgery and the placement of plates and screws. Ms. Hood then underwent physical
therapy, and she continued exercises and rehabilitation at home for approximately four
months. Because of her injury, Ms. Hood missed the last two weeks of her freshman year
at UTK and had to seek accommodations from her professors. The Commission further
found that Ms. Hood incurred reasonable medical expenses totaling $47,398.23 as a
result of her injury and that she had continuing soreness and aching in the arm as well as
loss of range of motion.

The Commission noted that Ms. Hardy was not deposed for approximately two
years following the incident and that she could not remember exactly when she learned
about Ms. Hood’s fall, although she stated that it was approximately “a month after it
occurred.” Ms. Hardy testified regarding her normal procedure for cleaning the
dormitory bathrooms, including the fact that mopping the floor was the last task she
completed before moving on to the next bathroom. She acknowledged that she did not
utilize any type of signage after mopping the floor to warn of its wet condition and that
she left the floor to dry on its own. The Commission therefore found that Ms. Hood had
no warning that the floor had been mopped and was “wet all over.”

The Commission noted that Ms. Hardy had testified that she typically began her
cleaning of the Carrick bathrooms on the opposite end of the hall from where Ms. Hood’s
room was located, such that she would have reached Ms. Hood’s bathroom after cleaning
ten or eleven other bathrooms. Ms. Hardy stated that she typically began cleaning around
9:20 a.m. and that it would take her “twenty minutes tops” to clean each one. Weighing
the testimony of Ms. Hood and Ms. Hardy, the Commission credited Ms. Hood’s specific
timeline of events on the day in question rather than Ms. Hardy’s testimony based on her
“habit and routine.” The Commission thus determined that Ms. Hardy had cleaned the
bathroom and left the floor wet and that Ms. Hood had no warning of this condition.
Based on the facts, the Commission concluded that Ms. Hardy was negligent and that her
negligence was the proximate cause of Ms. Hood’s injuries and damages. The
Commission also concluded that Ms. Hardy had created a dangerous condition on State-
controlled property that presented a foreseeable risk to Ms. Hood.

Based on the testimony of Ms. Hood’s treating physician, the Commission
determined that Ms. Hood had suffered a broken humerus as the result of her fall,
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resulting in necessary surgical intervention and physical therapy. The Commission found
that the treatment Ms. Hood received was both reasonable and necessary to her recovery.
The Commission therefore awarded to Ms. Hood damages for medical expenses, pain and
suffering, permanent injury to her arm, scarring and disfigurement, and loss of enjoyment
of life totaling $187,398.23. The State timely appealed.

II. Issues Presented

The State presents the following issues for this Court’s review, which we have
restated slightly:

1. Whether the Commission erred when it determined that Ms. Hardy
had created a puddle of water in which Ms. Hood slipped and fell.

2. Whether the Commission erred in awarding damages to Ms. Hood in
the amount of $187,398.23.

III. Standard of Review

This Court has previously explained the appropriate standard of review for a final
judgment of the Tennessee Claims Commission:

Except where otherwise provided, “[t]he decisions of the individual
commissioners or, when rendered, decisions of the entire commission
regarding claims on the regular docket may be appealed to the Tennessee
court of appeals pursuant to the same rules of appellate procedure which
govern interlocutory appeals and appeals from final judgments in trial court
civil actions.” Tenn. Code Ann. § 9-8-403(a)(1) (Supp. 2009).
Accordingly, we review the Commission’s findings of fact and conclusions
of law pursuant to Rule 13(d) of the Tennessee Rules of Appellate
Procedure. Bowman v. State, 206 S.W.3d 467, 472 (Tenn. Ct. App. 2006)
(citation omitted). The Commission’s factual findings receive a
presumption of correctness and will not be overturned unless the evidence
preponderates to the contrary. Id. (citing Beare Co. v. State, 814 S.W.2d
715, 717 (Tenn. 1991); Dobson v. State, 23 S.W.3d 324, 328-29 (Tenn. Ct.
App. 1999); Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989)).
The Commission’s legal conclusions are reviewed de novo with no
presumption of correctness. Id. (citing Turner v. State, 184 S.W.3d 701,
704 (Tenn. Ct. App. 2005); Crew One Productions, Inc. v. State, 149
S.W.3d 89, 92 (Tenn. Ct. App. 2004); Belcher v. State, No. E2003-00642-
COA-R3-CV, 2003 Tenn. App. LEXIS 827, 2003 WL 22794479, at *4
(Tenn. Ct. App. Nov. 25, 2003)).

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Atkinson v. State, 337 S.W.3d 199, 204-05 (Tenn. Ct. App. 2010). “We accord great
deference to the Claims Commission’s determinations on matters of witness credibility
and will not re-evaluate such determinations absent clear and convincing evidence to the
contrary.” Cavaliere v. State, No. M2021-00038-COA-R3-CV, 2022 WL 320241, at *2
(Tenn. Ct. App. Feb. 3, 2022) (quoting Skipper v. State, No. M2009-00022-COA-R3-CV,
2009 WL 2365580, at *2 (Tenn. Ct. App. July 31, 2009)).

IV. Preponderance of the Evidence

This action was filed pursuant to Tennessee Code Annotated § 9-8-307(a)(1)(C)
(Supp. 2023), which provides that the State can be sued based on certain acts or
omissions of its employees, including:

Negligently created or maintained dangerous conditions on state controlled
real property. The claimant under this subdivision (a)(1)(C) must establish
the foreseeability of the risks and notice given to the proper state officials at
a time sufficiently prior to the injury for the state to have taken appropriate
measures[.]

Tennessee Code Annotated § 9-8-307 (Supp. 2023) also contains the following pertinent
provisions:

(c) The determination of the state’s liability in tort shall be based on the
traditional tort concepts of duty and the reasonably prudent person’s
standard of care.

(d) The state will be liable for actual damages only. No award shall be
made unless the facts found by the commission would entitle the
claimant to a judgment in an action at law if the state had been a
private individual[.]

As this Court has previously explained regarding the proper interpretation of the
above-quoted statutory provisions:

From the usual and ordinary meaning of the words of this statute, we
believe that T.C.A. § 9-8-307(a)(1)(C) removes the state’s immunity to the
same extent as the obligation of a private owner or occupier of land. In
other words, for the purposes of determining the state’s liability after
removal of immunity, the statute merely codifies the common law
obligation of the owner or occupier of land. Owners and occupiers of land
have an obligation to exercise ordinary care and diligence in maintaining
their premises in a safe condition for visitors upon the premises, and are
under an affirmative duty to protect these persons against dangers of which
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 they know or which, with reasonable care, they might discover.
McCormick v. Waters, 594 S.W.2d 385 (Tenn. 1980).

In Jones v. Zayre, Inc., 600 S.W.2d 730 (Tenn. App. 1980), the
Eastern Section of this Court said:

Before an owner or operator of premises can be held liable for
negligence in allowing a dangerous or defective condition to
exist on its premises, it must have (1) been created by the
owner or operator or his agent or, (2) if the condition was
created by someone other than the owner or operator or his
agent, there must be actual or constructive notice on the part
of the owner or operator that the condition existed prior to the
accident. Gargaro v. Kroger Grocery & Baking Co., 22
Tenn. App. 70, 118 S.W.2d 561 (1938).

600 S.W.2d at 732.

In the case at bar, the state constructed the offending instrumentality
and obviously must be charged with notice of its condition as constructed.

Sanders v. State, 783 S.W.2d 948, 951-52 (Tenn. Ct. App. 1989).

In the instant case, the State argues that Ms. Hood failed to prove that Ms. Hardy
created the dangerous condition that caused Ms. Hood’s injury. In support of this
argument, the State relies upon Robbins v. Memphis Little Theatre Players, No. 02A01-
9601-CV-00018, 1997 WL 585743, at *1 (Tenn. Ct. App. Sept. 23, 1997), wherein this
Court affirmed the trial court’s grant of a directed verdict based on a lack of evidence that
the defendant created the dangerous condition. The State argues that Ms. Hood’s
evidence regarding the creation of the dangerous condition, much like that of the plaintiff
in Robbins, was too speculative to support the Commission’s finding.

In Robbins, the plaintiff slipped on “something slick” and fell while descending a
set of stairs inside a theater. See Robbins, 1997 WL 585743, at *1. After her fall, the
plaintiff saw a crumpled theater program, which was printed on “slick” paper, lying on
the step behind her. Id. The plaintiff therefore believed that she had slipped on the
theater program and fallen. Id. With regard to the plaintiff’s proof on this issue, the
Robbins Court stated:

While a jury is not permitted to speculate regarding two equally
probable inferences, a plaintiff, to bring his case before the jury, need not
produce evidence that excludes every other reasonable conclusion. Benson
v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn. App. 1985). The
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 plaintiff need only present proof which, if found credible, makes the
plaintiff’s theory more probable than that of the defendant. Id. Although
the plaintiff’s evidence is far from strong, it is sufficient for a jury to
conclude that the crumpled theater program was the cause of Mrs. Robbins’
fall.

Id. at *3.

In order to prevail on her negligence claim, however, the Robbins plaintiff was
also required to prove that “an employee of the Theatre either caused the dangerous
condition by dropping the program or had actual or constructive notice of its presence.”
Id. (“In a premises liability action where the plaintiff has been injured by a dangerous
condition, he must prove either that the defendant had actual or constructive knowledge
of the condition or that the defendant caused the condition.” (citing Keene v. Cracker
Barrel Old Country Store, 853 S.W.2d 501, 503 (Tenn. Ct. App. 1992))). Because the
plaintiff presented no proof demonstrating that the theater had notice of the presence of
the program on the stairs, and because it was equally plausible that the program could
have been dropped by a patron as well as by an employee of the theater, this Court
affirmed the trial court’s grant of a directed verdict in the theater’s favor, determining
that there was “no evidence that it was more likely than not that the dangerous condition
was caused by the defendant.” Robbins, 1997 WL 585743, at *4.

In contrast to Robbins, our review of the evidence in the case at bar leads us to
conclude that Ms. Hood did provide the Commission with evidence that it was more
likely than not that the dangerous condition of the wet tile floor was caused by the State’s
employee. Ms. Hood testified that at the time of her injury, she was residing in Carrick
with a roommate and two additional suite mates. Regarding the configuration of the
suite, Ms. Hood explained that there was an entry door from the main dormitory hallway
that opened to an interior, tiled foyer with a toilet on the right side and a shower on the
left. After passing through this foyer/bathroom area, one would come to two interior
doors, with each door opening to a bedroom containing two beds. It is undisputed that
Ms. Hardy cleaned the bathroom in Ms. Hood’s suite on the date in question, including
mopping the tile floor; however, the State asserts that Ms. Hardy’s testimony via
deposition proves that she could not have cleaned the bathroom before Ms. Hood
returned during lunch or while she was in her room. We disagree.

Ms. Hood related that she attended class on the morning in question and that her
class ended at 12:25 p.m. Ms. Hood then walked to a fast food restaurant to pick up
lunch. Ms. Hood reported that her walk to the restaurant would have lasted around
fifteen minutes, her time in the restaurant was around twenty minutes, and her walk back
to her room in Carrick took another fifteen minutes, placing her back in her room at
approximately 1:15 p.m. According to Ms. Hood, upon entry to the foyer area of her
suite, she did not notice the tile floor being slippery or wet and also did not smell any
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odor of cleaning fluid. Ms. Hood was wearing regular, rubber-soled tennis shoes when
she arrived at the suite.

Ms. Hood stated that she proceeded to enter her bedroom, where she sat in a chair
and ate her lunch while watching television. Ms. Hood estimated that she ate lunch for
fifteen to twenty minutes before exiting her bedroom to go to the restroom and entering
the tiled foyer area where she fell. Ms. Hood was barefoot at that time. Ms. Hood
testified that when she stepped onto the tile floor, she slipped and fell, catching herself
with her right arm. She described the tile floor as “completely wet,” “saturated,” and
having “a strong smell of cleaning solution as if the housekeeper was there.” According
to Ms. Hood, the smell was exactly the same as she had smelled on previous occasions
when the bathroom had been cleaned. Ms. Hood had not smelled this odor upon her
initial entry into the suite.

Ms. Hood related that she was the only person in her suite when she returned from
class that morning. Although she acknowledged that her suite mates had access to the
suite, she explained that they were in class at that time and did not return to the suite until
after she had gone to the hospital. Ms. Hood stated that she had not spilled any liquid on
the floor on the day in question.

Ms. Hood articulated that although did not see or hear the housekeeper enter the
suite while she was there, she had her bedroom door closed, which was a thick, wooden
door, and she was using earphones while watching television. Ms. Hood further stated
that she kept her bedroom door closed because sometimes the outer door did not lock
properly. Ms. Hood also indicated that she did not see the custodial cart, but she
explained that she typically did not see the cart when the housekeeper was cleaning. She
also testified that the housekeeper often failed to clean the bathroom thoroughly and
would frequently omit tasks.

Ms. Hood testified that following her fall, her clothes were extremely wet from the
liquid on the tile floor such that she felt she needed to change before going to the
hospital. She also stated that she knew her arm was broken and that she texted a friend to
take her for medical care. Ms. Hood was transported to Fort Sanders Hospital and
acknowledged the accuracy of the time on her intake form of 1:54 p.m.

In contrast to Ms. Hood’s testimony relating the specific timeline of events on the
day in question, Ms. Hardy, the State employee, testified only concerning what was her
normal daily routine for cleaning the bathrooms in Carrick. Ms. Hardy acknowledged
that she did not learn about Ms. Hood’s fall until approximately one month after it
occurred, and she did not report having a memory of any specific details from the day of
the incident. Ms. Hardy testified that she cleaned the bathrooms on Ms. Hood’s floor on
Tuesday; Ms. Hood’s fall occurred on a Tuesday. Ms. Hardy related that she normally
started on the opposite end of the hall with the resident advisor’s room and worked her
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way down the hall, such that Ms. Hood’s room would have been one of the last that she
cleaned for the day. Based on this routine, she stated that she would not have cleaned
Ms. Hood’s bathroom until after her 2:00-2:15 p.m. break. Ms. Hardy admitted,
however, that the resident advisor sometimes asked Ms. Hardy to skip her room and
return to clean it at the end of the day.

Regarding the time spent cleaning each bathroom, Ms. Hardy first testified that
she spent twenty minutes “tops” in each bathroom. However, Ms. Hardy later indicated
that she never spent less than twenty minutes cleaning a bathroom. According to Ms.
Hardy, mopping the floor was the final task she performed before moving on to the next
bathroom and leaving the floor to air dry. Ms. Hardy acknowledged that at the time of
the incident, she did not place a “wet floor” sign in the bathroom after mopping although
she had been instructed to do so after the accident. Ms. Hardy further acknowledged that
she always used a specific cleaning solution, provided by her employer and mixed with
water, in her mop bucket.

We reiterate that the “Commission’s factual findings receive a presumption of
correctness and will not be overturned unless the evidence preponderates to the contrary.”
Atkinson, 337 S.W.3d at 204. “For the evidence to preponderate against a trial court’s
finding of fact, it must support another finding of fact with greater convincing effect.” In
re Estate of Ladd, 247 S.W.3d 628, 637 (Tenn. Ct. App. 2007).

Having thoroughly reviewed the record in this matter, we conclude that the
evidence does not preponderate against the Commission’s factual findings. Although
some of the evidence presented was circumstantial, defined as “proof of collateral facts
and circumstances from which the existence of the main fact may be deduced according
to reason and common experience of mankind,” see State v. Thompson, 519 S.W.2d 789,
792 (Tenn. 1975), we note that “direct and circumstantial evidence is equally relevant
and equally probative.” McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 825 (Tenn.
Ct. App. 2005) (quoting NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE §
4.01[5], at 4-10 (4th ed. 2000)).

We further note that “[t]he weight, faith and credit to be given to any witness’s
testimony lies in the first instance with the trier of fact. The credibility accorded will be
given great weight by the appellate court.” Estate of Hargett v. Brown, No. M2022-
00250-COA-R3-CV, 2023 WL 3916273, at *7 (Tenn. Ct. App. June 9, 2023) (quoting
Hollar v. Hollar, No. M2014-02370-COA-R3-CV, 2015 WL 7748967, at *3 (Tenn. Ct.
App. Nov. 30, 2015)). With regard to testimony provided via deposition, our Supreme
Court has clarified:

In contrast, appellate review of documentary proof, such as
depositions or other forms of testimony presented to the trial court in a
‘cold’ record, differs considerably. When reviewing documentary proof, all
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 impressions of weight and credibility are drawn from the contents of the
evidence, and not from the appearance of witnesses and oral testimony at
trial. As a result, appellate courts may make an independent assessment of
the credibility of the documentary proof it reviews, without affording
deference to the trial court’s findings.

Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783-84 (Tenn. 1999) (citations
omitted).

Although Ms. Hood neither saw nor heard Ms. Hardy enter the suite or clean the
bathroom, she explained that she was in her bedroom, with the door closed, watching
television while using headphones. She also testified that the liquid on the tile floor that
caused her to slip smelled of cleaning fluid and that the odor was exactly the same as the
odor she smelled after the housekeeper had cleaned the bathroom on prior occasions.
Moreover, Ms. Hood had not smelled this odor upon her initial entry into the suite on that
day. Based upon our independent review of the evidence, we agree with the
Commission’s determination that Ms. Hood’s testimony should be given more weight
concerning the timing of events on the day in question because it was detailed and
specific, whereas Ms. Hardy’s testimony related only to what was her normal routine.

With respect to the time Ms. Hardy spent cleaning the bathroom, Ms. Hardy’s
testimony was somewhat contradictory regarding whether she spent twenty minutes
“tops” in the bathroom or whether she never spent less than twenty minutes. However,
Ms. Hood opined that she had spent fifteen to twenty minutes in her bedroom eating,
which was a sufficient amount of time for the cleaning to occur, especially considering
Ms. Hood’s testimony that certain cleaning tasks in the bathroom were often omitted.
Accordingly, we conclude that the evidence preponderates in favor of the Commission’s
finding that Ms. Hardy’s cleaning of the bathroom left the tile floor in a dangerous
condition for which Ms. Hood had no warning and that such condition was the cause of
Ms. Hood’s fall.

V. Amount of Damages Awarded

Having determined that the Commission properly concluded that the State should
be held liable for Ms. Hood’s damages, we now turn to the second issue raised by the
State on appeal: whether the amount of damages awarded to Ms. Hood was in error. The
State argues that the non-economic damages awarded—$45,000 for pain and suffering;
$45,000 for permanent injury; $20,000 for scarring/disfigurement; and $30,000 for loss
of enjoyment of life—were excessive and should be reduced on appeal. As this Court has
previously explained:

Where a trial court hears a case without a jury, we review the amount of
damages awarded by the trial court as a question of fact with a presumption
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 of correctness, and will only alter or amend the amount if the trial court
utilized the wrong measure of damages or when the evidence preponderates
against the amount of damages awarded.

Eagles Landing Dev., LLC v. Eagles Landing Apartments, LP, 386 S.W.3d 246, 250
(Tenn. Ct. App. 2012) (quoting Smith v. Williams, No. E1999-01346-COA-R3-CV, 2000
WL 277059, at 4 (Tenn. Ct. App. March 15, 2000)).

Concerning the types of non-economic damages awarded in this case, this Court
has explained: “Damages for pain and suffering include both the physical and mental
discomfort caused by an injury.” Palanki ex rel. Palanki v. Vanderbilt Univ., 215 S.W.3d
380, 388 (Tenn. Ct. App. 2006). Permanent injuries are injuries “from which the plaintiff
cannot completely recover” and which “prevent[] a person from living his or her life in
comfort by adding inconvenience or loss of physical vigor.” Palanki, 215 S.W.3d at 388
(quoting Overstreet v. Shoney’s, 4 S.W.3d 699, 715 (Tenn. Ct. App. 1999)).
“Disfigurement is a specific type of permanent injury that impairs a plaintiff’s beauty,
symmetry, or appearance.” Id. Finally, “[d]amages for loss of enjoyment of life
compensate the injured person for the limitations placed on his or her ability to enjoy the
pleasures and amenities of life.” Palanki, 215 S.W.3d at 388-389 (quoting Overstreet, 4
S.W.3d at 715-16).

Here, Ms. Hood testified that she suffered a fracture of her humerus that required
surgical intervention as well as months of continued rehabilitation and therapy. Ms.
Hood described the significant pain that she experienced both at the time of her injury
and for some time thereafter, which affected her ability to perform daily tasks and to
participate in and enjoy her college classes and other activities. This testimony was
supported by that of Ms. Hood’s mother, who explained that for weeks following the
accident, she had to help her daughter bathe, dress, use the restroom, brush her hair, and
accomplish many other tasks. She stated that Ms. Hood also had trouble sleeping for
some time after the accident due to the pain. According to Ms. Hood’s mother, Ms. Hood
was “devastated” about having to miss many of the social occasions surrounding the end
of her freshman year of college. Ms. Hood also had to be escorted back and forth to UTK
to complete class work and exams.

Ms. Hood further testified regarding her ongoing loss of range of motion as well
as pain and weakness in the affected arm even though her treating physician was pleased
with her recovery. Ms. Hood detailed a continuing ache in the injured arm and
demonstrated her inability at the time of trial to fully straighten it. She further
demonstrated to the Commission both the significant bruising and swelling that she
experienced immediately after the injury, as shown in photographic evidence, and the
scar that remained after her surgery.

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 Having thoroughly reviewed the evidence presented, we conclude that the
Commission did not utilize the wrong measure of damages when crafting the award. See
Eagles Landing Dev., 386 S.W.3d at 250. We further conclude that the evidence does not
preponderate against the amount of damages awarded. See id. We accordingly affirm the
amount of damages awarded by the Commission in this matter.

VI. Conclusion

For the foregoing reasons, we affirm the Commission’s judgment in its entirety.
Costs on appeal are assessed to the State of Tennessee. This case is remanded to the
Commission for enforcement of the judgment and collection of costs assessed below.

s/Thomas R. Frierson, II
_________________________________
THOMAS R. FRIERSON, II, JUDGE

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