LUCILLE BESKE, )
)
Plaintiff/Appellee, )
) Davidson Circuit
) No. 91C-1809
VS. )
) Appeal No.
) 01-A-01-9510-CV-00435
OPRYLAND USA, INC., )
)
Defendant/Appellant. )
FILED
IN THE COURT OF APPEALS OF TENNESSEE February 7, 1996
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE SIXTH CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE THOMAS W. BROTHERS, JUDGE
Tracy Shaw
HOWELL & FISHER
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
Larry D. Ashworth
ASHWORTH & HIGH
1st Floor, 227 Second Ave., N.
Nashville, Tennessee 37201-1636
ATTORNEYS FOR PLAINTIFF/APPELLEE
Dianna Baker Shew
FARRIS, WARFIELD & KANADAY
Nineteenth Floor
SunTrust Center
424 Church Street
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
LUCILLE BESKE, )
)
Plaintiff/Appellee, )
) Davidson Circuit
) No. 91C-1809
VS. )
) Appeal No.
) 01-A-01-9510-CV-00435
OPRYLAND USA, INC., )
)
Defendant/Appellant. )
OPINION
The defendant, Opryland USA, Inc., has appealed from a judgment in favor of the
plaintiff, Lucille Beske in the amount of $125,000 for personal injuries sustained in a fall on
the premises of defendant. The jury awarded plaintiff $200,000, but the Trial Judge
suggested a remittitur of $75,000 which was accepted by the plaintiff without protest. The
Trial Judge also awarded plaintiff judgment for $1,404.50 discretionary costs.
The defendant has presented four issues for review, of which the first is:
I. The Trial Court erred in denying Opryland USA, Inc.'s
motion for a judgment in accordance with its motion for a
directed verdict because there was no material evidence to
support the jury's verdict.
In reviewing the denial of a directed verdict, this Court is required to review the
evidentiary record to determine whether it contains evidence of facts which would support a
verdict by a jury. Lazy Seven Coal Sales, Inc. v. Stone & Hines, P.C., Tenn. 1991, 813
S.W.2d 400. If, taking the strongest legitimate view of all the evidence in favor of the
opponent of the motion and disregarding all contrary evidence, a reasonable mind would be
required to conclude the issues in favor of the movant, the motion should be sustained.
Holmes v. Wilson, Tenn. 1977, 551 S.W.2d 682; Flynn v. Shoney's, Inc., Tenn. App. 1992,
850 S.W.2d 458.
In a premises liability case, the plaintiff must show a hazardous condition which was
created by the defendant, or of which the defendant had actual or constructive notice.
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Constructive notice may be shown by the existence of the hazard for such time or under such
circumstances that reasonable care on the part of defendant would have revealed the hazard to
defendant. Paradiso v. Kroger Co., Tenn. App. 1973, 499 S.W.2d 78; Allison v. Blount
National Bank, 54 Tenn. App. 359, 390 S.W.2d 716 (1965); Gargaro v. Kroger Grocery &
Baking Co., 22 Tenn. App. 70, 118 S.W.2d 561 (1938).
At the trial, no evidence was presented to show that defendant created or had actual
notice of the hazard. The evidence to show constructive notice was as follows:
The plaintiff fell on defendant's premises when passing through one of two turnstiles
at the entrance of a train station. Passengers boarding the train were required to pass through
one of the turnstiles which counted the number of passengers. The counters were read hourly
by one of defendant's employees. There was no attendant at the turnstile where plaintiff fell.
At the time of the fall there was a rush of passengers toward the train. Passengers were not
permitted to carry liquid refreshment aboard the train, hence refreshments were discarded
before entering the train. Some refreshments were not placed in receptacles but were simply
thrown on the ground or walkway. Management was aware that spilled beverages were a
common occurrence at the entrance to the turnstiles. The surface where plaintiff fell was of
poured concrete which could be slick when wet. Some of the spilled beverages were
"cleaned up" by spreading with a broom to accelerate drying. If nearby employees were too
busy they did not clean up the spill. As plaintiff passed through the turnstile, it was crowded,
she did see water on the pavement, but she fell at that point, and felt ice cold water on the
pavement as she lay on the pavement after her fall.
Defendant cites Jones v. Zayre, Inc., Tenn. App. 1980, 600 S.W.2d 730, wherein,
after plaintiff fell, she saw a plastic clothes clip nearby which she theorized had caused her
fall. This Court affirmed a directed verdict for the defendant for lack of proof of how long
the clothes clip had been on the floor. In the present case, there is evidence of the recurrent
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problem of discarded beverages in the area and of the failure of defendant to reasonably
monitor this recurrent dangerous condition.
In Hale v. Blue Boar Cafeteria Co., Inc., unpublished, Tenn. App. WS Feb. 21, 1980,
this Court reversed a directed verdict for the defendant where plaintiff slipped and fell in an
area where patrons regularly spilled liquids on the floor.
In Bledsoe v. Delta Refining Co., unpublished, Tenn. App. WS Nov. 4, 1983, a patron
slipped and fell on the pavement of a self-service petroleum facility where patrons regularly
spilled petroleum on the pavement. This Court held that the operator of such a facility must
exercise due care to protect its patrons from hazards created by other patrons as a result of the
self service manner of operation. The cause was remanded for trial upon the principles stated
in the opinion.
In Stroming v. Houston's Restaurant, Inc., unpublished, Tenn. App. MS, Nov. 23,
1994, No. 01-A-01-9304-CV-00189, LEXIS 670, this Court affirmed a directed verdict
where the fall occurred in the vicinity of a depression in a parking lot, but no evidence that
the fall was caused by the depression.
In Barrett v. Red Food Stores, unpublished, Tenn. App. MS Feb. 26, 1992, No. 01-A-
01-9108-CV-302, LEXIS 196, the plaintiff slipped in water which regularly dripped from ice
cream while being placed in a display case. This Court affirmed a verdict for the plaintiff on
the "common occurrence" theory. In the present case, there is evidence that the spillage of
beverages in the area was a common occurrence of which the defendant had constructive
notice. Defendant argues that plaintiff did not prove that her fall was caused by discarded
beverage. The jury heard evidence from which it was reasonable for them to infer that the
fall was caused by the discarded beverages of which defendant had constructive knowledge
and as to which defendant did not exercise reasonable precautions for the safety of patrons.
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No reversible error is found in defendant's first issue.
Defendant's second issue is stated as follows:
II. As an alternative to a directed verdict, Opryland USA,
Inc. is entitled to a new trial because the Trial Judge did not
approve the jury's verdict.
The basis of this issue is the oral comment of the Trial Judge during the hearing on
defendant's motion for a new trial as follows:
Motion for a new trial, I have independently evaluated all of
the evidence, and I do not find the evidence preponderates
against the jury's verdict. It's a question of whether or not there
was -- part of this case has been dismissed by summary
judgment on the limited issue and going to the -- presented to
the jury. I think it was accurately -- it was disputed -- it was
just disputed factual evidence, and I cannot find the evidence
preponderates against it, so I must respectfully deny the motion
for new trial. [Emphasis supplied.]
Defendant relies upon the emphasized portion of the above quotation to show that the Trial
Judge failed to properly exercise his function as thirteenth juror. Ideally, a verbal approval of
a verdict by the Trial Judge should be in the form of, "I approve the verdict," or "I join in the
verdict," or "the verdict is supported by a preponderance of the evidence." However, in
James E. Strates Shows v. Jakobik, Tenn. 1977, 554 S.W.2d 613, the Supreme Court said:
[I]t is the duty of the Trial Judge to weight the evidence and
determine whether it preponderates against the verdict . . . .
In the light of the quoted authority, the oral statement of the Trial Judge does not
evidence any reversible failure on his part. There is no evidence that he was dissatisfied with
the verdict as mentioned in Miller v. Doe, Tenn. App. 1993, 873 S.W.2d 346 or Sherlin v.
Roberson, Tenn. App. 1976, 551 S.W.2d 700.
Defendant's third issue is presented as follows:
III. The Trial Court erred in ordering an insufficient
remittitur which resulted in an award of damages beyond the
range of reasonableness.
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As stated above, the Trial Judge suggested (not ordered) a remittitur of $75,000 of the
$200,000 verdict. The plaintiff insists that the remittitur, which was made by plaintiff
without protest, should be restored by this Court.
T.C.A. Section 20-10-102 provides as follows:
Remittitur. - (a) In all jury trials had in civil actions, after the
verdict has been rendered, and on motion for a new trial, when
the trial judge is of the opinion that the verdict in favor of a
party should be reduced, and a remittitur is suggested by the
trial judge on that account, with the provision that in case the
party in whose favor the verdict has been rendered refuses to
make the remittitur a new trial will be awarded, the party in
whose favor such verdict has been rendered may make such
remittitur under protest, and appeal from the action of the trial
judge to the court of appeals.
(b) The court of appeals shall review the action of the trial
court suggesting a remittitur using the standard of review
provided for in Rule 13(d) of the Tennessee Rules of Appellate
Procedure applicable to decisions of the trial court sitting
without a jury. If, in the opinion of the court of appeals, the
verdict of the jury should not have been reduced, but the
judgment of the trial court is correct in other respects, the case
shall be reversed to that extent, and judgment shall be rendered
in the court of appeals for the full amount originally awarded
by the jury in the trial court. [Emphasis supplied.]
Since the plaintiff did not make the suggested remittitur under protest as required by
the statute, it is doubtful that the plaintiff has standing to request restoration of the remitted
portion of the verdict.
There is evidence that plaintiff's medical expenses were $12,300.59; that she suffered
a cracked tooth and a complicated fracture of the patella of her right knee, requiring initial
surgery and nine days hospitalization, a second surgery, and extensive and painful physical
therapy. There is also evidence that, five years after the fall, plaintiff continues to suffer pain
in her knee, wear a brace, require assistance on stairs, and be unable to continue her former
activities of hiking, travel and volunteer hospital work. A doctor's notes refer to plaintiff as
"a very pleasant 72 year old woman." No other evidence is cited or found as to the age or
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life expectancy of the plaintiff. The Trial Judge and jury had an opportunity to form
impressions from actual observation of plaintiff. This Court, of course, does not have such
an opportunity.
In the light of the foregoing, this Court concludes that the evidence does not
preponderate against suggested remittitur and that the amount of the verdict, as reduced by
remittitur, is supported by substantial and material evidence.
Defendant's request for discretionary costs is denied.
The judgment of the Trial Court is affirmed. Costs of this appeal are adjudged against
the defendant. The cause is remanded to the Trial Court for necessary further proceedings.
Affirmed and Remanded.
_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________
SAMUEL L. LEWIS, JUDGE
_____________________________________
BEN H. CANTRELL, JUDGE
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