                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   September 13, 2005 Session

       JAMES K. CANNON v. LOUDON COUNTY, TENNESSEE, ET AL.

                        Appeal from the Circuit Court for Loudon County
                            No. 7112    Russell Simmons, Jr., Judge



                No. E2004-02995-COA-R3-CV - FILED DECEMBER 20, 2005


The issue presented in this slip-and-fall case is whether the trial court erred in ruling that the Plaintiff
and Defendants were each 50% at fault and dismissing the Plaintiff’s lawsuit. While incarcerated
in the Loudon County jail, James K. Cannon slipped on a floor wet from rainwater leaking through
the ceiling and window frame of his cell. Because we find that (1) Defendants were responsible for
creating the hazardous condition, and had prior notice of the hazardous condition and opportunity
to remedy it but did not, and (2) Mr. Cannon had little, if any, opportunity to avoid the known risk
of walking to the bathroom on a wet floor in rubber “flip-flop” type sandals, we reverse the trial
court’s finding that Mr. Cannon was 50% at fault. We hold the evidence preponderates in favor of
a finding that Defendants were 100% at fault in the accident causing Mr. Cannon’s injury, and
remand the case for a determination and award of damages.


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

SHARON G. LEE, J., delivered the opinion of the court. CHARLES D. SUSANO , JR., J., concurred in a
separate opinion. HERSCHEL PICKENS FRANKS, P.J., filed a dissenting opinion.

Patrick T. Phillips, Knoxville, Tennessee, for the Appellant, James K. Cannon.

Hanson R. Tipton, Knoxville, Tennessee, for the Appellees, Loudon County, Tennessee and Sheriff
Tim Guider.

                                               OPINION

                               I. Factual and Procedural Background

        On August 23, 2002, James K. Cannon, an inmate at the Loudon County jail, was housed
with seven or eight other inmates in a room originally designated as a “recreation room” of the jail.
At that time, the jail was undergoing renovations that included the addition of a second story to the
existing structure. Because of the construction, the jail’s roof frequently leaked when it was raining.
On the evening of August 23, 2002, the floor of the recreation room was wet from rainwater that had
leaked in from the ceiling and around the window frame in the room.

        At approximately 12:57 AM on August 24, 2002, Mr. Cannon got up from his floor sleeping
mat and slipped in water on the floor of his cell. He suffered a broken right ankle and was taken to
the emergency room. Following reconstructive surgery and a two-week stay in the hospital, Mr.
Cannon was on crutches for approximately five months. Mr. Cannon sustained a permanent injury
as a result of the fall.

        On August 22, 2003, Mr. Cannon brought this negligence action against Loudon County,
Tennessee and Tim Guider in his official capacity as Loudon County Sheriff. He alleged that a water
leak existed in the jail which caused rainwater to accumulate on the floor of the room where he was
confined. Mr. Cannon further alleged that the Defendants had actual or constructive notice of the
leak and wet floor, and that they failed to take reasonable steps to remedy the dangerous condition,
thereby exposing him to an unreasonable risk of harm. The complaint further alleged that the
Defendants “have a lawful duty to provide and pay for reasonable and necessary medical care to the
plaintiff by virtue of [his] incarceration in the Loudon County jail.”

     The case was tried without a jury on November 12, 2004.                 The trial court filed a
memorandum opinion making the following findings:

               The Court finds. . . that the inmates and jail personnel were all aware
               that when it rained there would be leaks that could cause water to be
               on the jail floor creating a dangerous condition.

               The plaintiff testified that on August 23, 2002 the rain and leaks had
               caused water to collect around the door to the restroom. The third
               [sic: second] shift which worked from 4:00 PM till 12:00 PM had
               been told three times about the water, and even though a request was
               made for a mop and bucket, no mop and bucket were brought. . . .The
               Court finds that the Defendant’s employees did have notice of the
               dangerous conditions, and they had sufficient time to have taken
               some action to remedy the condition. The Court finds the employees
               of the defendant were at fault in this case.

The trial court found Mr. Cannon was also at fault in the accident, reasoning as follows:

               The testimony indicates that the plaintiff knew the water was on the
               floor the day he fell, and that he knew the danger of walking in the
               water because on that date another inmate fell before he did, and in
               addition the plaintiff had fallen on a previous date. Even with this



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               knowledge the plaintiff walked across the water knowing he could
               slip and fall in it.

The trial court held “the defendants’ fault to be 50% and the plaintiff’s fault to be 50%” and
dismissed the lawsuit. Subsequently, Mr. Cannon filed a motion for additional findings of fact and
conclusions of law asking for additional findings regarding medical expenses. Mr. Cannon argued
that Loudon County was under a statutory duty to pay his reasonable and necessary medical
expenses. In response to the motion, the trial court entered an order on March 24, 2005, finding:
“Cannon was a state prisoner incarcerated in a county jail within the meaning of § 41-4-115(b)[,]”;
(2) the $42,615.38 in medical expenses incurred by Cannon were both reasonable and necessary; and
(3) these medical expenses were “incurred for emergency hospitalization and medical treatment
rendered to a state prisoner within the meaning of T.C.A. § 41-4-115.” The court then concluded
T.C.A. § 41-4-115(a) placed a duty on Loudon County to provide medical attention and treatment
for plaintiff and that the County is liable for the $42,615.38 in medical expenses, and further that
T.C.A. § 41-4-115(b) provides a mechanism through which Loudon County may seek reimbursement
from the State for these expenses.

                                         II. Issue Presented

       Mr. Cannon appeals, raising the issue of whether the trial court erred in concluding he was
50% at fault for the accident and barring his recovery for injuries sustained in the fall. Loudon
County argues on appeal that the trial court erred in holding it liable for Mr. Cannon’s medical
expenses pursuant to T.C.A. § 41-4-115.

                                      III. Standard of Review

        This non-jury case is subject to our de novo review upon the record of the proceedings below.
Tenn. R. App. P. 13(d) mandates that there is a presumption that the trial court's findings of fact are
correct, and we must honor that presumption unless the evidence preponderates to the contrary.
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). There is no presumption as
to the correctness of the trial court's conclusions of law. See Campbell v. Florida Steel Corp., 919
S.W.2d 26, 35 (Tenn. 1996). As this is a case involving comparative fault, it is important to note that
the assessment of the parties' relative fault is one of fact, carrying the aforementioned presumption
of correctness. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995); Keaton v. Hancock
Co. Bd. of Educ., 119 S.W.3d 218, 222-23 (Tenn. Ct. App. 2003). Our de novo review is subject to
the well-established principle that the trial court, having seen and heard the witnesses testify, is in
the best position to judge their credibility. See Bowman v. Bowman, 836 S.W.2d 563, 567
(Tenn.Ct.App.1991). Great deference must be shown to the trial court's credibility determinations.
Id; Keaton, 119 S.W.3d at 223.

                                            IV. Analysis

        Mr. Cannon argues on appeal that the Defendants should be allocated 100% of the fault
attributable to his accident. The issue before us is solely one of comparative negligence. It is not

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disputed that the Loudon County jail officials, while not insurers of their prisoners’ safety, have a
duty to exercise ordinary and reasonable care to protect the life and health of the persons in their
custody. Cockrum v. State, 843 S.W.2d 433, 436 (Tenn. Ct. App. 1992).
        The Supreme Court has provided the following guidance in assessing the percentage of fault
attributable to each party:
                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.


Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1994)(footnotes omitted).

         Based on our review of the record, the evidence does not preponderate against the trial
court’s finding that the Loudon County jailers “were all aware that when it rained there would be
leaks that could cause water to be on the jail floor[,] creating a dangerous condition.” At least seven
entries from the jail’s daily log, kept by correctional officers at the jail, were introduced into
evidence. These log entries documented instances in June, July, and August of 2002 of water leaks
at the jail. The July 13, 2002 entry documents a “bad water leak” and states “we’re running out of
buckets and trash cans.” The August 3, 2002 entry documents that the ceiling fell in next to the
control room, an area directly across from the recreation room.

         Additionally, it is undisputed that on August 1, 2002, Mr. Cannon slipped and fell on
accumulated rainwater that had leaked onto the recreation room floor. This August 1 fall
necessitated a trip to the emergency room and resulted in Mr. Cannon suffering a knee injury.
Captain Tony Arden, the jail administrator, testified that because there was no log notation showing
a water leak on the day of Mr. Cannon’s first fall, it was a reasonable assumption that not all of the
water leak instances showed up in the daily log, stating, “it’s supposed to have, but I suppose it
didn’t.” Capt. Arden further testified that there was no additional inspection routine put into place
at the jail after Mr. Cannon’s first fall.

         We likewise find that the evidence does not preponderate against the trial court’s conclusion
that the correctional officers on the second shift had been told three times about the rainwater leaking
into the recreation room and accumulating on the floor, and that they did nothing to remedy the
situation despite being asked at least once by the inmates for a mop and bucket. We concur with the


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trial court’s finding that the Loudon County jailers “did have notice of the dangerous conditions, and
they had sufficient time to have taken some action to remedy the condition.” Capt. Arden testified
that he knew that the jail’s roof would periodically leak when it rained, that rainwater would
accumulate in the cells, and the water posed a danger of causing someone to slip and fall. Capt.
Arden opined that having water accumulate on the jail floor is not “a safe way to house adult
inmates.”

      In summary, the evidence does not preponderate against the trial court’s conclusion that the
Defendants were at fault in Mr. Cannon’s accident and injury.

        We now turn to an examination of Mr. Cannon’s conduct. Shortly before 1:00 AM on
August 24, 2002, Mr. Cannon got up from his sleeping mat and slipped on the water in the recreation
room where he was incarcerated. Exactly why Mr. Cannon arose from his mat is not perfectly clear.
The daily log reporting the incident stated that he got up to go to the bathroom, and the trial court
so found. Mr. Cannon testified that he got up to take a fan over to the door of the cell so that a
correctional officer could try to fix it, pursuant to the officer’s request. The parties agree that the
precise reason Mr. Cannon got up, whether to go to the bathroom or in hopes of getting the fan fixed,
does not have a particularly strong bearing on the issue of comparative negligence in this case.

        We agree, because in either instance, we find that Mr. Cannon had good cause to take the
action he did. If it was to go to the bathroom, he obviously had little choice in the matter. Mr.
Cannon also had good cause to bring the fan to the cell door, because the air conditioning was not
working in the recreation room, and there was no window opening to the outside. The jail log entry
for August 24th, the day of his injury, written by a correctional officer, stated, “[i]t’s hot as 40 hells
in this jail. Everyone is going to be sick.” Because the air conditioning was not working, the
inmates in the recreation room were provided with an electric fan. It was undisputed that the fan was
broken on August 23rd and 24th. Capt. Arden testified that inmates in an enclosed room with no
exterior air would have great need of an electric fan.

        Mr. Cannon testified that on the evening of August 23, 2002, “it came a downpour, and it was
immediately leaking down, down the walls and dripping onto the bench and splattering into the
floor.” He stated that when it rained, there were leaks “pretty much all over the room, in every
corner and around the windowsill.” Mr. Cannon testified that on the evening of his fall, the floor
of the bathroom was “completely covered” with rainwater – “it had ran down all the interior walls.
It was coming through a vent that they had removed for the roof, an exhaust fan, they had taken it
out, and there was just a vent grid on the inside, and it was just pouring through it.”

        Matthew Ryan, another inmate housed in the recreation room, testified that water had
accumulated in the recreation room in the area around the entrance to the bathroom. Mr. Cannon
further testified as follows regarding the location of the water:




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               A: There were footprints, tracks, where they had walked to the rest
               room when – it was tracked. It was different from people coming and
               going in and out of the rest room.

               Q: How widespread were those footprints?



               A: Over half of the area in and out from the rest room.

                               *                *             *

               Q: Mr. Cannon, did you know there was water on the floor of the rec
               room on August 23, 2002?

               A: Yes, sir.

               Q: Did you know where this water was?

               A: In the general areas of it, yes.

               Q: Well, didn’t you mark for your attorney there the areas that there
               was water on the floor?

               A: Yes, sir, but I didn’t know exactly where every single foot track.
               I knew where the general areas of the puddling was, but where people
               had tracked from the bathroom in and out, I didn’t exactly know the
               specific location of each footstep.

               Q: Mr. Cannon, did you know where the puddle was that you fell in
               before you fell in it?

               A: I didn’t fall in a puddle. I slipped on one of the tracks, where
               somebody had tracked the water out of the bathroom.

               Q: But you knew there were footprints, tracking water out of the
               bathroom.

               A: Not until I fell, I didn’t.

In response to the question whether there “was any way to get to the rest room or to this electric fan
without going through rainwater,” Mr. Cannon replied, “No, sir.”



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        Inmates at the Loudon County jail were issued sandals for footwear. Capt. Arden testified
that they are commonly referred to as “flip-flops” and agreed that they “have a spongy, rubbery,
plastic-like material on the sole.” Mr. Ryan testified that the sandals are “slick” on a wet surface.

        One of the factors courts must consider in assessing comparative negligence is “the
reasonableness of the party’s conduct in confronting a risk.” Eaton, 891 S.W.2d at 592. In making
this determination, our courts have properly taken into consideration whether, and to what extent,
encountering a known risk is avoidable; or, stated another way, what reasonable alternatives to
encountering a known risk are available to a party.

         Thus, in Keaton v. Hancock Co. Bd. of Educ., 119 S.W.3d 218 (Tenn. Ct. App. 2003), this
court found that the plaintiff had little choice in encountering a known risk of electric shock from
a dangerous workplace appliance. The Keaton plaintiff established that wearing think rubber gloves
for protection was not a reasonable means of avoiding the risk, because she was unable to do her job
as a cook wearing them. Keaton, 119 S.W.3d at 224. The court stated that “[w]e cannot blame the
plaintiff for continuing to work in the school kitchen. People have to work for a living.” Id. at 225.
Therefore, among other reasons, because the plaintiff had no reasonable opportunity to avoid the
risk, the Keaton court held the employer 100% at fault, modifying the trial court’s ruling finding the
plaintiff 33a% at fault. Id. at 226.

        Similarly, in Heggs v. Wilson Inn, No. M2003-00919-COA-R3-CV, 2005 WL 2051287, 2005
Tenn. App. LEXIS 535 (Tenn. Ct. App. M.S., filed August 25, 2005) the court vacated the trial
court’s grant of summary judgment against a plaintiff who slipped on a wet tile floor as she was
walking to an elevator. Even though the Heggs plaintiff saw the “wet floor” sign, she walked on the
floor because she wanted to take the elevator. The court, noting that “a customer’s full knowledge
of a dangerous condition does not necessarily immunize a defendant from premises liability if the
danger is either unavoidable or one that given the circumstances the customer is likely to encounter
anyway,” and inferring for summary judgment purposes that there was no way to board the elevator
without walking on the wet floor, held summary judgment to be inappropriate. Heggs, 2005 Tenn.
App. LEXIS 535 at *10, *14-15.

         Conversely, in Easley v. Baker, No. M2003-02752-COA-R3-CV, 2005 WL 697525, 2005
Tenn. App. LEXIS 166 (Tenn. Ct. App. M.S., filed Mar. 24, 2005), the court affirmed summary
judgment against a plaintiff who slipped on a wet bathroom floor where a “wet floor” sign was in
plain view. Among other things, the court reasoned that the Easley plaintiff had a reasonable
opportunity or choice to avoid the risk of a water puddle, noting that the plaintiff “was no ‘captive’
in the restroom as there is no evidence that the toilet stalls were not available for his purposes or that
his immediate need for urination compelled his action.” Easley, 2005 Tenn. App. LEXIS 166 at *20.

        In the present case, as the evidence outlined above indicates, Mr. Cannon had little, if any,
choice in encountering the risk of walking on a wet floor, a dangerous condition caused by the action
of the Defendants. Obviously, Mr. Cannon had no choice but to remain in his cell and could not
voluntarily leave the premises. For this reason and the other reasons stated above, and taking into


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consideration “the total context of the injury-causing accident, including the relationship of the
parties,” Keaton, 119 S.W.3d at 225, as well as the Eaton factors, we hold that the evidence
preponderates in favor of the conclusion that the plaintiff should not be held at fault in the accident.

        While the trier of fact has considerable latitude in allocating percentages of fault, appellate
courts have the power to reallocate fault when the evidence preponderates against the trial court’s
fault-finding. Keaton, 119 S.W.2d at 225 (citing Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn.
1995) and Cross v. City of Memphis, 20 S.W.3d 642 (Tenn. 2000)).




                                            V. Conclusion

        For the aforementioned reasons, the judgment of the trial court finding Mr. Cannon 50% at
fault and dismissing his lawsuit is reversed. We allocate 100% of the fault in the accident to the
Defendants. Because the Defendants are liable for Mr. Cannon’s injury under traditional negligence
principles, our holding renders moot the question of whether the County is liable for his medical
expenses pursuant to T.C.A. § 41-4-115, and that issue is pretermitted. There is an order in the
record from the Loudon County Criminal Court holding the State of Tennessee liable for Mr.
Cannon’s medical expenses, and it is not clear whether, and to what extent, the State has made
payments for those expenses. This case is remanded to the trial court for such proceedings as may
be required, consistent with this opinion, including a determination and award of damages to Mr.
Cannon, and consideration of any subrogation issues that may have arisen as between the respective
parties and the State. Costs on appeal are assessed to the Appellees, Loudon County, Tennessee and
Tim Guider in his official capacity as Sheriff of Loudon County.




                                               _______________________________
                                               SHARON G. LEE, JUDGE




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