                                                                                         05/27/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                      Assigned on Briefs April 7, 2020

MARTHA GILMORE, EXECUTRIX OF THE ESTATE OF NANNIE SUSAN
                 CARPENTER V. NOL, LLC
              A/K/A PREMIER RADIOLOGY

                 Appeal from the Circuit Court for Davidson County
                      No. 17C2479      Kelvin D. Jones, Judge


                            No. M2019-01308-COA-R3-CV


A physical therapy patient standing just outside a building was struck by the building’s
automatic door, causing her to fall and suffer broken bones. The patient sued the owner
of the building, asserting negligence and premises liability. The owner asserted the
affirmative defense of comparative fault. The jury returned verdicts finding both parties
negligent and assigned more fault to the patient than to the building owner, thus barring
the patient from any recovery. The patient moved for a new trial, arguing that the jury’s
verdict finding her to be at fault was contrary to the weight of the evidence. The trial
court denied her motion, and the patient appealed. We conclude that the trial judge did
not err in its role as the thirteenth juror, but we vacate the court’s judgment finding the
patient comparatively at fault because no material evidence was introduced at trial to
support this aspect of the jury’s verdict.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
                                   Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Edmund J. Schmidt, III, and Jackie E. Sharp, Jr., Nashville, Tennessee, for the appellant,
Martha Gilmore, executrix of the Estate of Nannie Susan Carpenter.

Raymond D. Lackey, Franklin, Tennessee, for the appellee, NOL, LLC.
                                       OPINION

                     I. FACTUAL AND PROCEDURAL BACKGROUND

        Nannie Susan Carpenter was eighty-four year old on April 21, 2017, when she
went to her physical therapy appointment at The Anderson Building, in Nashville. The
Anderson Building is owned and managed by NOL, LLC a/k/a Premier Radiology
(“NOL”). Access to the Anderson Building is controlled by a telescoping automatic door
that slides open when a person is detected by electronic sensors. When Ms. Carpenter
was exiting The Anderson Building following her appointment on April 21, 2017, the
automatic door closed while she was standing just outside the threshold of the doorway.
The impact from the door caused Ms. Carpenter to fall and suffer fractures to her femur
and humerus bones.

       Ms. Carpenter filed a lawsuit against NOL on October 4, 2017, alleging
negligence and premises liability as a result of an unreasonably dangerous condition. Ms.
Carpenter sought compensatory damages, including medical costs, pain and suffering,
and the loss of her enjoyment of life. NOL filed an answer denying liability and asserting
comparative fault as an affirmative defense.

       The parties tried the case before a jury on April 29 and 30, 2019. The jury
returned a verdict finding that both NOL and Ms. Carpenter were negligent and that Ms.
Carpenter had sustained damages in the amount of $500,000. The jury allocated fault
between the parties, finding Ms. Carpenter to be 77% negligent and NOL to be 23%
negligent. Because the jury found Ms. Carpenter to be over 50% at fault, the trial court
entered a judgment in favor of NOL and dismissed Ms. Carpenter’s complaint.

        Ms. Carpenter moved for a new trial pursuant to Tenn. R. Civ. P. 59.06, asserting
that the jury’s comparative fault verdict was contrary to the weight of the evidence. Ms.
Carpenter also asserted that the court made erroneous evidentiary rulings that more likely
than not affected the jury’s verdict and resulted in manifest injustice to her. Ms.
Carpenter asked the court to exercise its authority as the thirteenth juror to order a new
trial. The trial court held a hearing on June 21, 2019, to consider Ms. Carpenter’s motion
and stated the following from the bench:

             All right. The Court in this matter must consider whether the record
      contains any material evidence to support the verdict, the jury’s findings
      must be affirmed. And when sitting as the 13th juror the Court, after
      weighing the evidence of the trial court, if the Court is satisfied with the
      jury’s verdict, the Court must approve that verdict.




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              The Court, after weighing the evidence, is satisfied with the jury’s
       verdict and accordingly must approve the verdict. And for that reason the
       motion for a new trial is respectfully denied.

Then, in its written order, the trial court wrote:

              The Court, acting as a thirteenth juror, having considered the filings
       of the parties, arguments of counsel and the evidence submitted at trial,
       finds that he is satisfied with the jury’s verdict and Plaintiff’s motion is
       denied.

       Ms. Carpenter appealed the trial court’s denial of her motion for a new trial and
raised the following arguments: (1) that the trial court applied an incorrect standard in its
role as the thirteenth juror and committed manifest error; and (2) that NOL offered no
evidence in support of its affirmative defense of comparative fault, with the result that the
jury’s verdict finding Ms. Carpenter 77% at fault was insupportable and she was entitled
to a new trial. Ms. Carpenter made the additional alternative argument that if we
conclude material evidence supported the jury’s verdict finding her negligent, the trial
court committed reversible error in excluding testimony of her expert regarding whether
Ms. Carpenter did anything before her fall that would have triggered the door to close on
her. Ms. Carpenter passed away during the pendency of this appeal, and her executrix,
Martha Gilmore, has been substituted as the appellant herein.

                                        II. ANALYSIS

A. Trial Judge as Thirteenth Juror

        A jury verdict is not valid until a trial judge approves it. Wells Fargo Bank, N.A.
v. Lockett, No. E2018-00129-COA-R3-CV, 2019 WL 417998, at *3 (Tenn. Ct. App. Feb.
4, 2019). It is the law in Tennessee that when a party moves for a new trial on the basis
that the jury verdict is contrary to the weight of the evidence, the trial judge is to act as
the thirteenth juror. Id. In this role, the judge “must not defer to the jury,” id. at *4, but
“‘is under a duty to independently weigh the evidence and determine whether the
evidence preponderates in favor of or against the verdict,’” id. at *3 (quoting Shivers v.
Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996)). If the trial judge is not satisfied
with the jury’s verdict, he or she “‘should set it aside.’” Cooper v. Tabb, 347 S.W.3d
207, 221 (Tenn. Ct. App. 2010) (quoting Davidson v. Lindsey, 104 S.W.3d 483, 488
(Tenn. 2003)); see also Murdock v. Fort Sanders Reg’l Med. Ctr., No. E2012-01650-
COA-R3-CV, 2013 WL 1460579, at *3 (Tenn. Ct. App. Apr. 11, 2013).

       Before approving a verdict, a trial judge must always weigh the evidence
       and determine that the evidence preponderates in favor of the verdict, such
       that the trial judge is “independently satisfied” with the verdict. However,

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       the trial judge is not required to expose his mental processes in exercising
       his role as thirteenth juror. “In deciding [a motion for a new trial], the . . .
       judge is not bound to give any reasons, any more than the jury itself is
       bound to do so.” He is not required to “make an express statement that the
       preponderance of the evidence supported the verdict. . . .”

Wells Fargo Bank, 2019 WL 417998, at *4 (quoting Bellamy v. Cracker Barrel Old
Country Store, Inc., No. M2008-00294-COA-R3-CV, 2008 WL 5424015, at *3 (Tenn.
Ct. App. Dec. 30, 2008) (citations omitted)); see also Ladd ex rel. Ladd v. Honda Motor
Co., 939 S.W.2d 83, 105 (Tenn. Ct. App. 1996) (“The thirteenth juror rule requires the
trial court to weigh the evidence independently, to pass upon the issues, and to decide
whether the verdict is supported by the evidence.”).

       The trial court has broad discretion in ruling on a motion for a new trial and is not
required to provide reasons for its decision to grant or deny the motion. Cooper, 347
S.W.3d at 221. When a trial judge approves a jury verdict without making any
comments, the appellate court assumes the trial judge properly performed his or her duty
as the thirteenth juror. Id. However, when a judge discusses the reasons for his or her
decision, the appellate court reviews the reasons simply to determine whether he or she
properly considered the issues “‘and was satisfied or dissatisfied with the verdict
thereon.’” Id. (quoting Davidson, 104 S.W.3d at 488); see also Bellamy, 2008 WL
5424015, at *10 (“[W]e must review his [or her] comments to ensure they do not
evidence a failure to comply with the thirteenth juror standard.”); Heath v. Memphis
Radiological Prof’l Corp., 79 S.W.3d 550, 554 (Tenn. Ct. App. 2001). The appellant has
the burden of proving that the trial judge failed to carry out his role as the thirteenth juror.
Bellamy, 2008 WL 5424015, at *6.

        Ms. Carpenter’s estate contends that the trial judge misconceived his duty to act as
the thirteenth juror based on the judge’s comment made during the hearing on June 21,
2019, that he “must consider whether the record contains any material evidence to
support the verdict, [and if there is,] the jury’s findings must be affirmed.” The “material
evidence standard” the trial judge referenced is the standard an appellate court uses when
reviewing a jury verdict to determine whether sufficient evidence was introduced at trial
to support a jury’s verdict. TENN. R. APP. P. 13(d); Barnes v. Goodyear Tire & Rubber
Co., 48 S.W.3d 698, 704-05 (Tenn. 2000). As discussed above, this is not the proper
standard for a trial judge to apply when faced with a motion for a new trial and acting as
the thirteenth juror. Immediately after the trial judge made this comment, however, he
stated:

       [W]hen sitting as the 13th juror the Court, after weighing the evidence of
       the trial court, if the Court is satisfied with the jury’s verdict, the Court
       must approve that verdict. The Court, after weighing the evidence, is


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       satisfied with the jury’s verdict and accordingly must approve the verdict.
       And for that reason the motion for a new trial is respectfully denied.

      Then, when the trial judge issued his written order denying Ms. Carpenter’s
motion for a new trial, he wrote:

       The Court, acting as a thirteenth juror, having considered the filings of the
       parties, arguments of counsel and the evidence submitted at trial, finds that
       he is satisfied with the jury’s verdict and Plaintiff’s motion is denied.

       The Tennessee Supreme Court has stated that an appellate court should consider a
trial judge’s comments “as a whole” when determining whether a trial judge
misconceived his or her duty as a thirteenth juror. Heath, 79 S.W.3d at 555-56 (citing
Holden v. Rannick, 682 S.W.2d 903, 905-06 (Tenn. 1984)); see also Murdock, 2013 WL
1460579, at *4. “Where it appears ‘from statements made by the circuit judge . . . that he
was really not satisfied with the verdict, it becomes the duty of this court . . . to do what
the circuit judge should have done; that is, to grant a new trial.’” Cooper, 347 S.W.3d at
223 (quoting Cumberland Tel. & Tel. Co. v. Smithwick, 79 S.W. 803, 804 (Tenn. 1904));
see also Ladd, 939 S.W.2d at 105.

        To prove she is entitled to a new trial, Ms. Carpenter’s estate must show that the
trial judge “was not satisfied with the verdict or misconceived its role as the thirteenth
juror.” Wells Fargo Bank, 2019 WL 417998, at *3; see also Mabey v. Maggas, No.
M2006-02689-COA-R3-CV, 2007 WL 2713726, at *6 (Tenn. Ct. App. Sept. 18, 2007).
This she cannot do. Although the trial judge initially enunciated an incorrect standard of
review, he subsequently corrected himself and set forth the appropriate standard. The
judge then declared that, after weighing the evidence, he was satisfied with the jury’s
verdict and, therefore, approved the verdict. A week later, the trial judge followed up
these statements with a written order in which he repeated the proper standard of review
and stated that he was denying Ms. Carpenter’s motion for a new trial because he was
“satisfied with the jury’s verdict.”

        Considering the trial judge’s comments as a whole and construing them together
with the court’s written order, we conclude that Ms. Carpenter’s estate has failed to prove
that the trial judge misconceived his duty to act as the thirteenth juror when he approved
the jury’s verdict and denied her motion for a new trial. See Heath, 79 S.W.3d at 556
(stating that “a court speaks through its written orders”); see also Ladd, 939 S.W.2d at
104 (same).

B. Sufficiency of the Evidence




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       Ms. Carpenter’s estate next argues that the evidence was insufficient to support the
jury’s verdict finding Ms. Carpenter 77% at fault for her fall. Our Supreme Court has
described an appellate court’s review of a jury’s verdict as follows:

       When addressing whether there is material evidence to support a verdict, an
       appellate court shall: (1) take the strongest legitimate view of all the
       evidence in favor of the verdict; (2) assume the truth of all evidence that
       supports the verdict; (3) allow all reasonable inferences to sustain the
       verdict; and (4) discard all [countervailing] evidence. Crabtree Masonry
       Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978); Black v.
       Quinn, 646 S.W.2d 437, 439-40 (Tenn. Ct. App. 1982). Appellate courts
       shall neither reweigh the evidence nor decide where the preponderance of
       the evidence lies. If the record contains “any material evidence to support
       the verdict, [the jury’s findings] must be affirmed; if it were otherwise, the
       parties would be deprived of their constitutional right to trial by
       jury.” Crabtree Masonry Co., 575 S.W.2d at 5.

Barnes, 48 S.W.3d at 704-05; see also Hall v. Derrick, No. W2003-01353-COA-R3-CV,
2004 WL 2191016, at *3 (Tenn. Ct. App. Sept. 24, 2004) (holding that when an appellate
court reviews a jury’s verdict, it “may not reweigh the evidence or make credibility
determinations, and it must construe the evidence in the light most favorable to the
verdict.”). A jury verdict will not be set aside if there is any material evidence to support
the verdict. TENN. R. APP. P. 13(d). “Material evidence is ‘evidence material to the
question in controversy, which must necessarily enter into the consideration of the
controversy and by itself, or in connection with the other evidence, be determinative of
the case.’” Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 422 (Tenn. 2013)
(quoting Knoxville Traction Co. v. Brown, 89 S.W. 319, 321 (Tenn. 1905)). This court
has described “substantial and material evidence” as “‘such relevant evidence as a
reasonable mind might accept to support a rational conclusion and such as to furnish a
reasonably sound basis for the action under consideration.’” Jones v. Bureau of
TennCare, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002) (quoting Papachristu v. Univ. of
Tenn., 29 S.W.3d 487, 490 (Tenn. Ct. App. 2000)). When reviewing the trial record, we
must “assume the truth of all evidence that supports the verdict and discard all
countervailing evidence.” McLemore ex rel. McLemore v. Elizabethton Med. Inv’rs. Ltd.
P’ship, 389 S.W.3d 764, 776 (Tenn. Ct. App. 2012) (citing Barnes, 48 S.W.3d at 704).
“[I]f the record contains any material evidence to support the verdict the jury’s findings
must be affirmed.” Id. (citing Barnes, 48 S.W.3d at 704).

       In addition to finding Ms. Carpenter negligent, the jury found NOL was negligent,
and this aspect of the jury’s verdict has not been appealed. The only portion of the
verdict Ms. Carpenter’s estate is challenging is the jury’s verdict finding that Ms.
Carpenter was negligent and bore some responsibility for her fall. NOL asserted the
affirmative defense of comparative fault. When a defendant asserts a plaintiff’s

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comparative fault, “the reasonableness of the plaintiff’s conduct in confronting a risk
comes into play.” Ayrhart v. Scruggs, No. M2003-00453-COA-R9-CV, 2004 WL
2113064, at *9 (Tenn. Ct. App. Sept. 21, 2004); see Hall, 2004 WL 2191016, at *4
(stating that in comparative fault cases, plaintiff’s reasonableness must be judged by
standard of “ordinarily prudent person” in the circumstances). To prove Ms. Carpenter
was negligent, NOL was required to “present some material evidence that the conduct of
[Ms. Carpenter] was a proximate cause of the accident.” Whaley v. Wolfenbarger, No.
E1999-02518-COA-R3-CV, 2000 WL 116055, at *2 (Tenn. Ct. App. Jan. 28, 2000). “‘In
Tennessee, proximate cause has been described as that act or omission which
immediately causes or fails to prevent the injury; an act or omission occurring or
concurring with another which, if it had not happened, the injury would not have been
inflicted.’” Id. (quoting Tenn. Trailways, Inc. v. Ervin, 438 S.W.2d 733, 735 (Tenn.
1969)).

        The evidence presented at trial included the surveillance video from The Anderson
Building showing Ms. Carpenter leaving the building through the automatic door and
falling to the ground after the sliding door came into contact with her. The video reveals
that as Ms. Carpenter walked towards the automatic door, the telescoping sliding door
opened, and she began walking through the doorway. Ms. Carpenter stopped in the path
of the sliding door and placed her hand on the doorjamb for close to ten seconds before
she continued through the doorway. She then stopped just past the threshold and was
standing close to the doorjamb for about two seconds when the sliding door began
closing and came into contact with Ms. Carpenter, causing her to fall over and hit the
ground.

       Brian Mills, a mechanical engineer, testified as an expert on behalf of Ms.
Carpenter. Mr. Mills inspected the automatic sliding door at issue and testified that the
door has two different types of sensors: presence sensors and motion sensors. Mr. Mills
explained:

             Presence means that if I’m standing in the way of the door in the
      beam of its sight, the door will remain in an open position because it thinks
      I want to walk through.

              The motion detection is for when I’m approaching the door, that it
      detects my motion, causes the door to open so I can pass through it. When
      it no longer detects my motion, the door closes behind me.

Mr. Mills testified that the door’s motion detection sensors worked properly. However,
he explained, the presence detection sensors located above the doorway did not detect
someone standing immediately adjacent to the doorjamb and failed to satisfy the industry
standard. Mr. Mills testified that “the presence detection zone ended about twelve inches
from the inside of the doorjamb.” Mr. Mills explained the importance of this: “[I]f I’m

                                          -7-
standing right here adjacent to the door, the door does not recognize me. So the door is
going to respond and close.” According to Mr. Mills, the presence detector sensors’
failure to detect Ms. Carpenter outside their detection zone caused the automatic door to
close and strike Ms. Carpenter.

       Q. Mr. Mills, why did the door come into contact with Ms. Carpenter on
       April 21, 2017?
       A. Because the sensors didn’t recognize that she was standing in the door.

       Q. Had the sensors been working as it’s supposed to, what should have
       happened?

       A. The door would have remained open until she left the safety zone.

       Mr. Mills testified that the industry standard required the presence sensors to
“match the whole open width of the door.” As Mr. Mills explained, “[I]f I’m standing
right here adjacent to the door, the door does not recognize me [as it should]. So the door
is going to respond and close.” He further testified that the industry standard requires
automatic doors to remain open for at least thirty seconds when a presence sensor is
triggered. The surveillance video shows that the total length of time Ms. Carpenter spent
passing through the doorway, including the ten seconds during which she stopped and
leaned against the doorjamb and the following two seconds when she was hit by the
sliding door, was less than thirty seconds.

       NOL’s designated representative, Eddie Schmidt, testified at the trial by
deposition. Ms. Carpenter’s attorney asked Mr. Schmidt, “If the doors are working
properly, do you agree that the doors should not contact and injure a pedestrian walking
through the doorway?” Mr. Schmidt responded, “I would think that’s right.”

        Ms. Carpenter testified at the trial as well. She testified that she was at The
Anderson Building on April 21, 2017, for an appointment with a physical therapist. She
testified that she had been having trouble with her balance but that she had no problems
walking. The surveillance video shows that when Ms. Carpenter was knocked over by
the sliding door, she was standing solidly on both legs and did not appear unbalanced.

       The jury was instructed on the law of negligence and returned verdicts finding that
both NOL and Ms. Carpenter were negligent. The jury found Ms. Carpenter suffered
damages in the amount of $500,000 and assigned 23% fault to NOL and 77% fault to Ms.
Carpenter. Because Ms. Carpenter was found to be more at fault than NOL, the trial
court granted judgment to NOL and dismissed Ms. Carpenter’s complaint. See McIntyre
v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992) (holding that plaintiff can recover for
defendant’s negligence only if plaintiff is found to be less negligent than defendant).


                                           -8-
       Ms. Carpenter’s estate argues that no evidence was introduced showing that Ms.
Carpenter was negligent. We agree. NOL contends that the jury could have found Ms.
Carpenter was negligent based on the surveillance video. However, our review of the
video convinces us that Ms. Carpenter did nothing that could have contributed to her
being struck by the automatic door. The evidence showed that the industry standard
required the automatic door to remain open for thirty seconds when a presence sensor is
triggered, and in this case the door was open for less than thirty seconds when it began to
close and knocked Ms. Carpenter over. No evidence was introduced that NOL had
posted any notices near the doors warning visitors against standing in any particular blind
spots near the automatic door to avoid being struck by the door. Moreover, no evidence
was introduced that Ms. Carpenter knew or should have known that the automatic door
would close if she stood too close to the doorjamb.

       In the absence of any material evidence from which the jury could have
determined that Ms. Carpenter engaged in conduct contributing to her fall or failed to act
in such a way that she could have prevented her fall, we vacate the trial court’s decision
finding Ms. Carpenter liable for comparative fault and remand for a new trial.1

                                          III. CONCLUSION

       The judgment of the trial court is vacated, and this matter is remanded for a new
trial. Costs of appeal are assessed against the appellee, NOL, LLC, a/k/a Premier
Radiology, for which execution may issue if necessary.


                                                          ________________________________
                                                          ANDY D. BENNETT, JUDGE




1
 In light of our holding that there is no material evidence to support the jury’s verdict finding Ms.
Carpenter at fault for negligence, we need not address Ms. Carpenter’s alternative argument that the trial
court erred in excluding testimony by her expert about whether she did anything to trigger the closing of
the automatic door.


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