                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                 ______________________________________________                  FILED
JAMES CHASE, JR.,
                                                                                September 5, 1997
       Plaintiff-Appellant,
                                                                                Cecil Crowson, Jr.
                                                                                 Appellate C ourt Clerk
                                                        Shelby Law No. 58129 T.D.
Vs.                                                     C.A. No. 02A01-9607-CV-00171

PHYSIOTHERAPY ASSOCIATES,
INC., F. WILLIAM HACKMEYER, JR.,
and EVERETT P. HAILEY,

      Defendant-Appellees.
____________________________________________________________________________

                  FROM THE CIRCUIT COURT OF SHELBY COUNTY
                    THE HONORABLE D’ARMY BAILEY, JUDGE




                                 Eugene C. Gaerig of Memphis
                                        For Appellant

                                  John W. Leach of Memphis
                      Spicer, Flynn & Rudstrom of Memphis, of Counsel
                                        For Appellees




                                          AFFIRMED

                                         Opinion filed:




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



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE


       This is premises liability suit. Plaintiff, James Chase, Jr. (Chase), appeals the trial court’s

entry of a judgment on the jury verdict finding that the defendants, F. William Hackmeyer, Jr.
and Everett P. Hailey, were 50% negligent and that Chase was 50% negligent, therefore barring

Chase’s recovery.

       Chase suffers from multiple sclerosis, and his physician referred him for physical therapy

to the Neurological Center of Physiotherapy Associates, Inc., a tenant in Executive Square Office

Building in Memphis, Tennessee owned by defendants F. William Hackmeyer, Jr. and Everett

P. Hailey. Chase went to Physiotherapy Associates for physical therapy on December 15 and

17, 1992. On December 29, 1992, while on his way to his third physical therapy appointment

with Physiotherapy Associates, Chase allegedly suffered injuries when his wheelchair fell over

backwards as he was ascending the handicap ramp in front of Executive Square.

       On December 1, 1993, Chase filed a complaint against Physiotherapy Associates, F.

William Hackmeyer, Jr., and Everett P. Hailey alleging that the defendants were negligent in

maintaining the property and that Chase was injured as a direct and proximate result of the

defendants’ negligence. The complaint further alleges that the defendants breached their

common law duty to provide Chase with a safe ramp that could be used by persons in

wheelchairs. The complaint avers that the ramp was too narrow, too short, and too steep and that

the ramp constituted a dangerous incline that was unsafe for wheelchair use. The complaint

further avers that the defendants knew or should have known that the ramp was not safe for

disabled persons using wheelchairs. The complaint also avers that the ramp was the only ramp

available for disabled persons using wheelchairs wishing to visit Physiotherapy Associates, Inc.

and that an ordinary person would not know that the ramp was too steep, too narrow, too short,

and could cause a wheel chair to turn over.

       In addition, the complaint alleges that the defendants violated the Tennessee Public

Building Accessibility Act, T.C.A. § 68-120-201 et seq. (the Act), in that the ramp did not meet

the minimum specifications as set forth in T.C.A. § 68-120-204 because it had a slope steeper

than twelve inches vertical rise for each twelve feet horizontal run. The complaint alleges that

this violation of the Act was negligence per se. Furthermore, the complaint avers that the ramp

violated the slope and clearance provision applicable to ramps of the 1976 Building Code of the

City of Memphis and Shelby County, Tennessee. As a result of the fall, Chase alleges that he

incurred pain and suffering, exacerbation of his multiple sclerosis, medical expenses, mental

anguish, deterioration of his physical condition, loss of earning capacity, and loss of enjoyment


                                               2
of life. The complaint requests a jury trial and prays for compensatory damages in an amount

not to exceed $1,000,000.00.

       Defendants Hackmeyer and Hailey filed an answer denying that they designed or

constructed the handicap ramp on which Chase fell and stating that the ramp was in existence

when they acquired ownership of the premises. The defendants further deny that they were

guilty of any negligence or other conduct that caused or contributed to Chase’s alleged injuries.

They admit that the Act was in full force and effect at the time of the accident, but deny that they

violated any portion of the Act. In addition, the defendants assert that the Act has no application

to buildings existing at the time of its enactment. The defendants further admit that the Memphis

building code was in full force and effect at the time of the accident, but deny its applicability

because the building code also does not apply to buildings in existence at the time of the

enactment of the Act. In addition, the defendants aver that Chase placed himself in a position

that he knew or should have known would likely cause injury, constituting a voluntary

assumption of a known risk and thus a complete bar to his recovery. Finally, the defendants aver

that Chase was guilty of negligence or other conduct that caused or contributed to his alleged

injuries, damages, or losses and that this negligence or other conduct was in a degree equal to

or greater than any alleged negligence or other conduct on their part.

        On January 29, 1996, Chase filed a motion to amend the complaint to change the date

of the building code to 1967 and to allege that the ramp when installed did not meet the 1967

building code, particularly § 617.0. The trial court entered an order allowing this amendment

on the same day.1 On February 8, 1996, during trial, Chase filed a motion to amend the

complaint again to set forth additional provisions of the 1967 Memphis building code. On

February 12, 1996, the trial court entered an order denying Chase’s motion to amend the

complaint.

        Sometime before trial, the trial court granted summary judgment in favor of

Physiotherapy Associates, Inc. on the ground that the handicap ramp was the landlord’s

responsibility, and not the tenant’s. Consequently, Physiotherapy Associates, Inc. was not a


       1
         This was apparently Chase’s second amendment to the complaint. Although the
record does not contain the first amendment, his amended complaint states that the ad
damnum is $2,000,000.00 pursuant to the court’s order of July 8, 1994 allowing the
amendment.

                                                 3
defendant at trial and is not a party to this appeal.           The jury trial of the case against the

remaining two defendants began on January 29, 1996. At the end of the defendants’ proof, on

February 13, 1996, Chase moved for a directed verdict on the issue of comparative negligence.

The trial court denied this motion from the bench and submitted the case to the jury. On

February 15, 1996, the jury returned a verdict form stating that the defendants were 50% at fault

and that Chase was 50% at fault. On February 23, 1996, the judge entered a judgment on the

jury verdict and dismissed the case.

        On March 19, 1996, Chase filed a motion for the entry of a judgment in accordance with

Tenn. R. Civ. P. 59.01 and 50.02. Chase also filed a motion for a new trial and to amend or

make additional findings of facts and/or alter or amend the judgment. On June 25, 1996, Chase

filed an amendment to his motion for a new trial. On July 9, 1996, the trial court entered two

orders denying each of Chase’s motions.

        We will now consider the issues presented for review. The first issue as stated in Chase’s

brief is:

1.      Did the defendants present any proof during the trial of this case that on the date of
December 29, 1992 in Memphis, Tennessee, James Chase, Jr. in his wheelchair did anything
different than another wheelchair user while using the defendants’ handicap ramp, that is, go
straight up the ramp and use the ramp as it was intended to be used?

        We should first note that the issue as phrased seeks an answer that is irrelevant. It

appears that the issue for review is whether the trial court erred in failing to direct a verdict for

Chase on the issue of his comparative negligence. Chase asserts that there is no proof that he

was comparatively negligent and that the trial court should have granted a directed verdict on

this issue. He further contends that the charge to the jury on this issue was prejudicial.

        When deciding a motion for directed verdict, both the trial court and the reviewing court

on appeal must look to all the evidence, take the strongest legitimate view of the evidence in

favor of the opponent of the motion, and allow all reasonable inferences in favor of that party.

Tennessee Farmers Mut. Ins. Co. v. Hinson, 651 S.W.2d 235, 237 (Tenn. App. 1983). The

court must discard all countervailing evidence, and if there is then any dispute as to any material

fact or any doubt as to the conclusions to be drawn from the whole evidence, the motion must

be denied. Id. at 237-38. The court may grant the motion only if, after assessing the evidence

according to the foregoing standards, it determines that reasonable minds could not differ as to



                                                   4
the conclusions to be drawn from the evidence. Sauls v. Evans, 635 S.W.2d 377, 379 (Tenn.

1982); Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977). If there is any doubt as to the

proper conclusions to be drawn from the evidence, the motion must be denied. Crosslin v.

Alsup, 594 S.W.2d 379, 380 (Tenn. 1980).

       The modified form of comparative negligence adopted in McIntyre v. Balentine, 833

S.W.2d 52 (Tenn. 1992), requires that the plaintiff’s negligence remain less than the defendant’s

negligence in order to allow a recovery. Id. at 57. In Eaton v. McLain, 891 S.W.2d 587 (Tenn.

1994), the Supreme Court set forth a general set of guidelines to assist trial courts and juries in

their duties of apportioning fault:

                       In summary, the percentage of fault assigned to each party
               should be dependent upon all the circumstances of the case,
               including such factors as: (1) the relative closeness of the causal
               relationship between the conduct of the defendant and the injury
               to the plaintiff; (2) the reasonableness of the party’s conduct in
               confronting a risk, such as whether the party knew of the risk, or
               should have known of it; (3) the extent to which the defendant
               failed to reasonably utilize an existing opportunity to avoid the
               injury to the plaintiff; (4) the existence of a sudden emergency
               requiring a hasty decision; (5) the significance of what the party
               was attempting to accomplish by the conduct, such as an attempt
               to save another’s life; and (6) the party’s particular capacities,
               such as age, maturity, training, education, and so forth.

                        We do not wish to imply from our enumeration of these
               factors that they constitute an exclusive list for the purpose of
               apportioning fault between the negligent parties. As stated above,
               the fault apportionment question is ultimately dependent upon all
               the circumstances of the case; and juries will continue, as they
               have in the past, to rely upon their common sense and ordinary
               experience in apportioning fault. Nor do we wish to imply that
               these factors will not need to be revised or expanded at some
               future date as we are presented with specific factual situations.
               We have only attempted in this opinion to give general guidance
               to the bench and bar; and any unresolved questions with respect
               to the factors must wait for another day. Again, while we realize
               that all these factors will not be applicable to every case, we
               believe that this approach is superior to leaving trial courts and
               juries completely without standards in this process. Therefore,
               we hold that the trial court should take the factors into
               consideration, if applicable, in ruling on a motion for directed
               verdict or JNOV which alleges negligence on the part of the
               plaintiff. The trial court should also include the factors, if
               applicable, in its instructions to the jury on the fault
               apportionment question.

Id. 592-93 (footnotes omitted).

        In this case, Chase testified that he used his crutches on his two previous visits to

Physiotherapy Associates and did not notice the ramp. He stated that he used the ramp on


                                                5
December 29, 1992 because Physiotherapy Associates told him to do so and that the ramp on

which he fell was the only handicap ramp at Executive Square. He further testified that he

observed the ramp for the first time on December 29, 1992 and then only a very short period of

time, just under a minute, before he began his ascent. Chase testified at trial that his wheelchair

rolled straight up the ramp and that he fell straight backwards.

        Even though Chase observed the ramp only for a brief period of time, he admitted that

in that period of time he “observed that it was an awful steep ramp.” In addition, although Chase

testified that he rolled straight up the ramp and flipped straight backwards, there is testimony in

the record that he was found lying on his side and that the right side of his clothes was dirty from

falling on concrete. This is evidence from which reasonable minds could differ as to whether

Chase ascended the ramp directly in the middle, as he testified, or more to one side. Moreover,

under Chase’s theory in this case, the obviousness of the condition of the handicap ramp presents

at the very least a factual question as to what degree he was negligent in encountering a known

risk.

        Taking the strongest legitimate view of the evidence and allowing all reasonable

inferences in favor of the defendants, the evidence introduced presents a factual issue as to

whether the plaintiff, Chase, was comparatively negligent. Therefore, the trial court property

denied Chase’s motion for a directed verdict and submitted the issue of comparative fault to the

jury. This argument is without merit.

        Chase also contends that Tennessee law gives this Court the right to alter the jury’s

findings when those findings are clearly erroneous. This Court does not reweigh the evidence

or reevaluate the witnesses’ credibility in an appeal from a jury verdict. Witter v. Nesbit, 878

S.W.2d 116, 121 (Tenn. App. 1993), appeal denied, (Tenn. 1994), cert. denied, 513 U.S. 873,

115 S. Ct. 199, 130 L. Ed. 2d 130 (1994). On appeal, this Court is required to take the strongest

legitimate view of the evidence favoring the prevailing party, discard all contrary evidence, allow

all reasonable inferences to uphold the jury’s verdict, and set aside the jury’s verdict only when

there is no material evidence to support the verdict. T.R.A.P. 13(d); Witter, 878 S.W.2d at 121.

        From our review of the record, there is material evidence to support the jury’s finding

that the defendants were 50% at fault and that Chase was 50% at fault. Therefore, we find the

first issue to be without merit.


                                                 6
       Under McIntyre, a plaintiff who is found to be 50% or more at fault is barred from

recovery. 833 S.W.2d at 57. Accordingly, all issues relating to damages are pretermitted. In

addition, the issue raised by the defendants disputing the evidence of the steepness of the ramp

is also pretermitted. We will now consider the remaining issues raised in this appeal.

       2.      Did the learned Trial Judge provide complete and adequate jury instructions?

       Chase contends that the trial judge gave incomplete and inadequate jury instructions on

the issue of negligence per se. He asserts that the steepness of the ramp is a violation of the

building code and that this violation constituted negligence per se.

       The defendants contend that there is no negligence per se because no provision of the

building code imposes a duty on purchasers of property to make improvements to bring the

property up to current code requirements.

       The doctrine of negligence per se is firmly established in our case law. In order to

recover on the basis of negligence per se, three elements must be established. First, it must be

shown that the defendant violated a statute or ordinance that imposes a duty or prohibits an act

for the benefit of a person or the public. Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 462,

32 S.W. 460 (1895); Memphis Street Railway v. Haynes, 112 Tenn. 712, 722, 81 S.W. 374

(1904). Second, the proof must show that the injured party was within the class of persons

whom the legislative body intended to benefit and protect by the enactment of that particular

statute or ordinance. Traylor v. Coburn, 597 S.W.2d 319, 322 (Tenn. App. 1980) (citing Carter

v. Redmond, 142 Tenn. 258, 218 S.W. 217 (1920)). In addition to establishing negligence per

se by showing these two elements, the plaintiff must of course show that such negligence was

the proximate cause of the injury. Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550

(Tenn. 1981); Alex v. Armstrong, 215 Tenn. 276, 283, 385 S.W.2d 110, 114 (1964).

       Chase relies on Smith v. Owen, 841 S.W.2d 828 (Tenn. App. 1992), in which the

defendant’s liability was predicated on negligence per se because the building code adopted by

the City of Cookeville expressly prohibited the renting of a dwelling for living purposes without

a prior inspection to ascertain that its condition met certain standards specified in that code. Id.

at 829-30. In addition, the proof showed that defendant did in fact rent the premises in which

the plaintiff's child sustained injuries without making such inspection and that an inspection

would have revealed the defect that caused the injury. Id. at 829. In so holding, the Smith Court


                                                 7
found that the defendant, who had no actual knowledge of the condition that caused the injury,

was put on constructive notice of her duty by virtue of the provisions in the Cookeville building

code. Id. at 831.

       In the instant case, the complaint does not set forth a provision similar to the provision

in Smith. However, Chase asserts that his February 9, 1996 motion to amend the complaint was

to supply the pertinent provisions of the building code and that the trial court erred in denying

his proposed amendment.

       Rule 15 of the Tennessee Rules of Civil Procedure provides in relevant part:

               A party may amend the party’s pleadings once as a matter of
               course at any time before a responsive pleading is served . . . the
               party may so amend it at any time within fifteen (15) days after
               [the pleading] is served. Otherwise a party may amend the
               party’s pleadings only by written consent of the adverse party or
               by leave of court; and leave shall be freely given when justice so
               requires.

Tenn. R. Civ. P. 15.01. After a responsive pleading has been served, the denial of a motion to

amend the pleadings lies within the sound discretion of the trial court and will not be reversed

absent a showing of an abuse of that discretion. Hall v. Shelby County Retirement Bd., 922

S.W.2d 543, 546 (Tenn. App. 1995)(citing Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn.

App. 1979); Welch v. Thuan, 882 S.W.2d 792, 793 (Tenn. App. 1994)). There are several

considerations a trial judge should evaluate in determining whether to grant or deny a motion to

amend. Id. Among these factors are an undue delay in filing, lack of notice to the opposing

party, bad faith by the moving party, repeated failure to cure deficiencies by previous

amendments, undue prejudice to the opposing party, and futility of amendment. Id. (citing

Merriman, 599 S.W.2d at 559).

       In light of the factors delineated above, there is justification for the trial court’s denial

of Chase’s motion to amend. He had previously amended his complaint, and this motion to

amend came well into the trial of the case. All of the provisions of the building code were

available to Chase at the time he filed his original complaint. The motion was untimely and

could unduly prejudice the defendants.

       The trial court did not abuse its discretion in denying Chase’s motion to amend, nor did

the trial court err in refusing Chase’s special request for instructions. Moreover, we have

heretofore noted that there was material evidence to support the jury’s finding of 50%


                                                8
comparative fault on the part of the plaintiff, thus, any error by the trial court in refusing the

amendment and the requested jury instructions would be harmless error. T.R.A.P. 36(b).

       The next issue to be considered is phrased by Chase as:

3. Did the learned trial judge commit reversible evidentiary rulings allowing improper questions
to be asked of Barbara Chase, the wife of plaintiff/appellant, by defense counsel?

       Apparently, this issue is predicated on the following trial proceedings relating to a letter

written by Chase’s treating physician, Dr. O’Sullivan:

Q:     (By Mr. Leach) What he put in this letter is incorrect?

               Mr. Gaerig:     Objection, if your Honor please. It calls for a conclusion of one

witness as to what another witness has said.

               The Court:      All right. Objection overruled.

Q:     (By Mr. Leach) Do you remember the question?

A:     No.

Q:     The question is this statement that Dr. O’Sullivan put in this letter of        December 4,

1992 that you told me you and your husband requested him to write where he put in there, he can

no longer propel himself in a normal wheelchair, is that true or untrue or was it true or untrue as

of December 4, 1992?

A:     Jim could propel himself in a wheelchair.

Q:     So that was untrue?

A:     For short distances.

                       *                       *                       *

Q:     Well, let me ask you again then. Is he telling the truth here when he says that Mr. Chase

could no longer propel himself in a normal wheelchair?

               Mr. Gaerig:     Your Honor --

               The Court:      Just a minute, please, sir -- I mean please, ma’am. Yes, sir.

               Mr. Gaerig:     Objection. She can’t testify what a doctor was saying. She

               cannot make a comment on --

               The Court:      Just a minute now. Again, I’m not going to argue with

       you, Mr. Gaerig. You make an objection, and I’ll rule on it.

               Mr. Gaerig:     My objection is --



                                                9
               The Court:      I know what your objection is, and I overrule it.

               Mr. Gaerig:     That’s fine.

A:     I don’t know why Dr. O’Sullivan stated it in those words, but I know that Jim could get

himself in a wheelchair a short distance.

                       *                       *                       *

       The above record does not reflect error on the part of the trial court, but in any event, we

do not see how this testimony affected the jury’s verdict or resulted in prejudice to the judicial

process. T.R.A.P. 36(b). This issue is without merit.

4.      Did the learned Trial Judge commit reversible error in fifteen rulings sustaining general
objections contrary to the Tennessee Rules of Evidence, Rule 103(a)(1)?

       Finally, Chase asserts that the trial judge erred in sustaining fifteen of the defendants’

counsel’s general objections.2 The defendants, on the other hand, contend that the nature of the

objections was obvious from their context.

       The Tennessee Rules of Evidence provide as follows:

              Rule 103. Rulings on evidence. — (a) Effect of Erroneous
              Ruling. — Error may not be predicated upon a ruling which
              admits or excludes evidence unless a substantial right of the party
              is affected, and
              (1) Objection. — In case the ruling is one admitting evidence, a
              timely objection or motion to strike appears of record, stating the
              specific ground of objection if the specific ground was not
               apparent from the context; or
               (2) Offer of Proof. — In case the ruling is one excluding
               evidence, the substance of the evidence and the specific
               evidentiary basis supporting admission were made known to the
               court by offer or were apparent from the context.
Tenn. R. Evid. 103.

       The record reveals that Chase did not make offers of proof of any kind on the majority

of the objections that he asserts the trial court erred in sustaining, nor did he show “the specific

evidentiary basis supporting admission” of the excluded evidence. Tenn. R. Evid. 103(a)(2).

Thus, we have no way of knowing whether the evidence was improperly excluded. In the

absence of an offer of proof and the inclusion of the testimony in the record, this Court cannot

consider the alleged errors. Davis v. Hall, 920 S.W.2d 213, 218 (Tenn. App. 1995)(citing

Brown v. Weik, 725 S.W.2d 938, 948 (Tenn. App. 1983); Valentine v. Conchemco, Inc., 588


       2
         In his brief, Chase asserts that the trial court sustained fifteen of the defendants’
counsel’s general objections. Chase then proceeds to list not fifteen, but nineteen, alleged
examples of such error.

                                                10
S.W.2d 871, 876 (Tenn. App. 1979)).

       We also note that some of the objections relate to the issue of damages and that,

consequently, these arguments have been pretermitted. As to the remaining objections with

which Chase takes issue, we find that in several instances the defendants’ counsel objected

during a deposition and gave specific reasons for the objection, so as to preserve his objection

for the record. In other instances the nature of the objection was plainly obvious from the

context in which the objection was made. In fact, the trial court specifically stated that in the

absence of a specific objection, the court would presume the nature of an objection to be as to

the relevancy of the matter. In any event, Chase has not set forth that the alleged errors

involving a substantial right more probably than not affected the judgment or would result in

prejudice to the judicial process. T.R.A.P. 36(b). This issue is without merit.

       Accordingly, the judgment of the trial court is affirmed. Costs of appeal are assessed

against the appellant.

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

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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