                                                                                        11/16/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              December 5, 2017 Session

          EDNA GREEN v. ST. GEORGE’S EPISCOPAL CHURCH

                 Appeal from the Circuit Court for Davidson County
                   No. 14C-5008       Kelvin D. Jones III, Judge
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                           No. M2017-00413-COA-R3-CV
                       ___________________________________


This appeal arises from a jury verdict in a personal injury action. The defendant alleged
the comparative fault of a nonparty who was potentially immune from liability under
Tennessee’s agritourism statute. See Tenn. Code Ann. §§ 43-39-101 to -103 (Supp.
2018). Before trial, the defendant asked the court to exclude all evidence and argument
before the jury regarding statutory immunity as irrelevant and prejudicial. The court
excluded argument and evidence of immunity but allowed the parties to present evidence
on whether the nonparty had complied with the statute. At the conclusion of the trial, the
court permitted the jury to apportion a percentage of fault to the nonparty without
considering the nonparty’s compliance with the agritourism statute. On appeal, the
plaintiff argues that the trial court erred in allowing the jury to allocate fault to the
nonparty because the agritourism statute provided immunity from fault as well as
liability. We conclude that nothing in the agritourism statute precludes the allocation of
fault to a nonparty agritourism professional in a negligence action. So we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and RICHARD H. DINKINS, J., joined.

Timothy T. Ishii, Nashville, Tennessee, for the appellant, Edna Green.

Jason K. Murrie and Thomas I. Carlton, Jr., Nashville, Tennessee, for the appellee, St.
George’s Episcopal Church.
                                       OPINION

                                            I.

       In June 2013, Edna Green, a parishioner of St. George’s Episcopal Church,
participated in a church-sponsored outing to a local farm. She was transported to the
farm on a bus owned by the church and driven by a fellow parishioner. The farm had a
gravel driveway with a posted speed limit of five miles per hour. The driveway
contained two drainage berms designed to combat erosion. When the bus crossed over
the berms, the resulting jolt severely injured Ms. Green. The bus driver maintained that
he never saw the drainage berms and, at the time of impact, the bus was traveling
approximately five to ten miles per hour.

       On November 25, 2014, Ms. Green filed a personal injury action against
St. George’s Episcopal Church in the Circuit Court for Davidson County, Tennessee.
St. George’s, in its answer, alleged the comparative fault of Partnership Management
Services, Inc. d/b/a Green Door Gourmet (“Green Door Gourmet”). But Ms. Green never
amended her complaint to include Green Door Gourmet as a defendant.

       Ms. Green moved for partial summary judgment on the affirmative defense of
comparative fault, arguing that Tennessee’s agritourism statute precluded a finding that
Green Door Gourmet’s conduct caused or contributed to her injuries. See Tenn. Code
Ann. §§ 43-39-101 to -103 (Supp. 2018). St. George’s opposed the motion and also filed
a motion in limine to exclude any evidence or discussion in the presence of the jury about
the agritourism statute. St. George’s argued that, although Green Door Gourmet was
potentially immune from liability, the jury could still apportion fault to an immune party.
So it maintained that any evidence about the statute was irrelevant and prejudicial.

       The trial court denied the motion for partial summary judgment and granted the
motion in limine in part. The court excluded any references to the statute or discussions
of immunity in the presence of the jury but allowed the parties to introduce evidence of
either Green Door Gourmet’s compliance or lack of compliance with the statute. The
court ruled that the jury could apportion fault to Green Door Gourmet only if it found that
the farm was not entitled to statutory immunity. The court denied St. George’s request to
reconsider, and the case proceeded to trial.

        Ms. Green submitted a special verdict form to aid the jury in determining whether
Green Door Gourmet had complied with the agritourism statute. But, after reconsidering
its previous ruling permitting evidence of compliance with the statute, the court chose not
to use the proposed verdict form. Instead, the court prohibited Ms. Green from arguing at
closing that Green Door Gourmet was not at fault because of compliance with the statute.
So the jury was free to allocate a percentage of fault to the farm.

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       The jury returned a verdict in Ms. Green’s favor but apportioned fault 15% to
St. George’s and 85% to Green Door Gourmet. The trial court approved the jury verdict
and entered judgment for Ms. Green. After the court denied her motion for a new trial,
Ms. Green appealed to this Court.

                                             II.

       Ms. Green contends the trial court erred in granting St. George’s motion in limine
and declining to use her special verdict form. The resolution of both issues depends on
the meaning of the agritourism statute. Statutory interpretation is a question of law,
which we review de novo with no presumption of correctness. Davis ex rel. Davis v.
Ibach, 465 S.W.3d 570, 573 (Tenn. 2015).

                                             A.

       Tennessee has adopted a modified version of comparative fault. See McIntyre v.
Balentine, 833 S.W.2d 52, 57 (Tenn. 1992). By closely linking liability to fault, our
supreme court sought to “strike[] the proper balance between the plaintiff’s interest in
being made whole with the defendant’s interest in paying only those damages for which
the defendant is responsible.” Banks v. Elks Club Pride of Tenn. 1102, 301 S.W.3d 214,
220 (Tenn. 2010). Thus, a defendant may “allege, as an affirmative defense, that a
nonparty caused or contributed to the [plaintiff’s] injury,” and if negligence is proven, the
jury may apportion a percentage of fault to the nonparty. McIntyre, 833 S.W.2d at 58;
see Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn. 2000) (“[A] jury can apportion fault to a
nonparty only after it is convinced that the defendant’s burden of establishing that a
nonparty caused or contributed to the plaintiff’s injury has been met.”).

        Tennessee “broadly permit[s] allocation of fault to all persons involved in an
injury-causing event.” Carroll, 29 S.W.3d at 21. “[W]hen a defendant raises the
nonparty defense in a negligence action, a jury may generally apportion fault to immune
nonparties.” Id. at 19. The goal of our comparative fault regime—“a fair and tight fit”
between fault and liability—cannot be achieved “when some participants to an act of
negligence are excluded from the apportionment of fault.” Id. at 20. For the same
reason, juries may allocate fault to nonparties who are “effectively immune” from
liability due to a statute of repose. Dotson v. Blake, 29 S.W.3d 26, 29 (Tenn. 2000).

       But there are exceptions to the rule. In tort cases involving work-related injuries, a
jury cannot apportion fault to the plaintiff’s employer due to the unique workings of our
workers’ compensation scheme. Carroll, 29 S.W.3d at 19; Snyder v. LTG Lufttechnische
GmbH, 955 S.W.2d 252, 256 (Tenn. 1997); Ridings v. Ralph M. Parsons Co., 914
S.W.2d 79, 82 (Tenn. 1996).


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       Our supreme court has recognized another exception to the broad general rule
based on an explicit legislative finding in the Dram Shop Act. Biscan v. Brown, 160
S.W.3d 462, 474 (Tenn. 2005); see Tenn. Code Ann. § 57-10-101 (2018). The legislature
has determined that “the consumption of any alcoholic beverage or beer rather than the
furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted
upon another by an intoxicated person.” Tenn. Code Ann. § 57-10-101. Our supreme
court held that this statutory language evidenced a policy determination that “persons
who furnish alcohol are not at fault for injuries inflicted by an intoxicated person” unless
a specific statutory exception applied. Biscan, 160 S.W.3d at 472-73; see Tenn. Code
Ann. § 57-10-102. Thus, a jury may not apportion fault to an individual who furnishes
alcohol in a social setting because the statute “removes, as a matter of law, the required
element of legal causation.” Biscan, 160 S.W.3d at 472.

                                                       B.

        With this background, we consider the agritourism statute. Our goal in statutory
interpretation is to “ascertain and effectuate the legislature’s intent.” Kite v. Kite, 22
S.W.3d 803, 805 (Tenn. 1997). When a statute’s language is unambiguous, we derive
legislative intent from the statute’s plain language. Carson Creek Vacation Resorts, Inc.
v. Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). The words used in the statute should
be given their natural, ordinary meaning “in the context in which they appear in the
statute and in light of the statute’s general purpose.” Lee Med., Inc. v. Beecher, 312
S.W.3d 515, 526 (Tenn. 2010).

       Subject to exceptions that are inapplicable here,1 the statute provides:

       (1) No agritourism professional shall be liable for injury to or death of a
       1
           Liability is not limited if the agritourism professional

       (1) Commits an act or omission that constitutes reckless disregard for the safety of the
       participant, and that act or omission proximately causes injury, damage or death to the
       participant;
       (2) Has actual knowledge or reasonably should have known of a dangerous condition on
       the land, facilities or equipment used in the activity or the dangerous propensity of a
       particular animal used in the activity and does not make the danger known to the
       participant, and the danger proximately causes injury, damage or death to the participant;
       (3) Fails to train, or improperly or inadequately trains, employees who are actively
       involved in agritourism activities, and an act or omission of the employee proximately
       causes injury, damage or death to the participant;
       (4) Intentionally injures the participant; or
       (5) Commits any other act, error or omission that constitutes willful or wanton
       misconduct, gross negligence or criminal conduct.

Tenn. Code Ann. § 43-39-102(b).

                                                        4
        participant resulting solely from the inherent risks of agritourism activities,
        as long as the warning contained in § 43-39-103(b) is posted as required;
        and
        (2) No participant or participant’s representative shall maintain an action
        against or recover from an agritourism professional for injury, loss, damage
        or death of the participant resulting exclusively from any of the inherent
        risks of agritourism activities.

Tenn. Code Ann. § 43-39-102(a).

        This language demonstrates a legislative intent to limit the liability of agritourism
professionals for injuries resulting “solely” from the inherent risks of agritourism
activities2 if the appropriate warnings are posted. See Shore v. Maple Lane Farms, LLC,
411 S.W.3d 405, 429 (Tenn. 2013) (“The purpose of the agritourism statute[], on the
other hand, is to limit the liability of ‘agritourism professionals’ for injuries to persons
who come to their property to enjoy corn mazes, hayrides, pick-your-own pumpkin and
strawberry patches, and other agritourism activities.”). Unlike the policy declaration
apparent on the face of the Dram Shop Act, the agritourism statute does not make
agritourism professionals immune from fault as well as liability. And the additional
language restricting a participant’s ability to “maintain a cause of action” does not change
our conclusion. A participant’s ability to bring suit affects whether the participant may
recover damages, not whether a jury can assess fault. See Carroll, 29 S.W.3d at 17 (“A
plaintiff’s ability to bring a cause of action was only important—to the extent that it
mattered at all in the Court’s analysis—in determining whether the plaintiff could recover
damages, not whether a jury could apportion fault to a nonparty.”).

        We conclude that nothing in the agritourism statute evidences a legislative intent
to preclude allocation of fault to an agritourism professional. Our supreme court has
“been careful to craft a system of comparative fault which remains true to the goal of
linking liability to fault.” Biscan, 160 S.W.3d at 485 (Drowota, J., dissenting in part).
Where, as here, there are multiple participants in an injury-causing event, the jury is
entitled to hear all the relevant evidence and allocate fault to those participants that
caused or contributed to the plaintiff’s injury. See Carroll, 29 S.W.3d at 19. “Otherwise,
liability might be imposed disproportionately to fault, a result plainly inconsistent with
our comparative fault scheme.” Dotson, 29 S.W.3d at 29.




        2
         The statute defines the “[i]nherent risks of agritourism activity” as “those dangers, conditions or
hazards that are an integral part of an agritourism activity, including, but not limited to,” surface
conditions. Tenn. Code Ann. § 43-39-101(3)(A)(i).
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                                            III.

       Because the agritourism statute provides immunity from liability, not immunity
from fault, the trial court did not err in allowing the jury to allocate fault to Green Door
Gourmet. Thus, the trial court did not err in granting the motion in limine or declining to
use the plaintiff’s special verdict form. We affirm the trial court’s decision in all
respects.



                                                   _________________________________
                                                   W. NEAL MCBRAYER, JUDGE




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