              IN THE COURT OF APPEALS OF TENNESSEE

                           EASTERN SECTION          FILED
                                                      July 28, 1997

                                                   Cecil Crowson, Jr.
JASON SCOTT WILLIAMS             )    CLAIMS COMMISSION C ourt Clerk
                                                   Appellate
                                 )
     Claimant-Appellee           )    NO. 03A01-9610-BC-00338
                                 )    (Claims Commission No. 02483)
     v.                          )
                                 )
STATE OF TENNESSEE               )
                                 )
     Defendant-Appellant         )    AFFIRMED AND REMANDED




CHARLES W. BURSON, Attorney General and Reporter, and George H.
Coffin, Jr., Assistant Attorney General, OF NASHVILLE FOR
APPELLANT

JAMES H. LONDON OF KNOXVILLE FOR APPELLEE




                             O P I N I O N




                                                   Goddard, P.J.




          This claim was heard by the Tennessee Claims Commission

on October 14, 1992.     A judgment was rendered September 12, 1996,

holding the State liable for damages for the injuries sustained

by the Claimant when he jumped from a stalled elevator in a

dormitory at East Tennessee State University.



          The Commissioner found that the negligence of the State

was 75 percent, and that of the Claimant, Jason Scott Williams,

was 25 percent.   He thereupon entered judgment against the State
in the amount of $181,875, being 75 percent of the $242,500

damages he found were suffered by Mr. Williams.



            The State appeals, raising the following three issues:



     I.     WHETHER THE COMMISSIONER ERRED IN DETERMINING THAT
            THE DEFENDANT BREACHED A DUTY OF CARE OWED TO THE
            CLAIMANT?

     II.    WHETHER THE COMMISSIONER ERRED IN CONCLUDING THAT
            DEFENDANT'S DEVIATION FROM ITS PROCEDURE AND NOT
            THE PLAINTIFF'S CONDUCT IN PRYING OPEN ELEVATOR
            DOORS AND JUMPING OUT AND FALLING DOWN THE
            ELEVATOR SHAFT WAS THE PROXIMATE CAUSE OF HIS
            INJURIES?

     III. WHETHER THE COMMISSIONER ERRED IN ADMITTING THE
          TESTIMONY OF A MEDICAL EXPERT WITNESS IN THIS
          CASE?



            Because we find, as to the first two issues, that the

evidence does not preponderate against the Commissioner's

findings of fact, and as to the third, that any error in

admitting the testimony of the medical expert was harmless, we

affirm the judgment of the Commissioner.



            The Claimant was 19 years old when the accident

occurred.    He was a former student at East Tennessee State

University.    He and a friend, Shane, were visiting the campus to

assist Shane’s girlfriend, Cara, in moving into the Lucille

Clement Hall, a five-story dormitory served by one or more

automatic elevators, in good working order.



            Cara’s room was on the fifth floor.   After about two

hours, the Claimant, Shane, and Cara left her room and summoned

the elevator which, as it developed, was already at the fifth



                                 2
floor.         In addition to these three, the Resident Assistant of the

dormitory and her boyfriend entered the elevator1 which began its

descent after the first floor button was pushed.                                                        It stopped

about half-way to the fourth floor, and the Resident Assistant

rang the alarm bell.                         After waiting about a minute, she again

rang the alarm bell, but nobody responded.                                                 The Claimant says he

heard “clanking noises"2 and after about two minutes, Shane pried

the door open and jumped four feet to the fourth floor without

mishap.



                     Shane thereupon motioned to the Claimant “that I was to

be the next one to jump.”                               The Claimant testified:



         I was perched on the edge both feet flat on the floor
         facing forward. I paused maybe fifteen or twenty
         seconds, and then I leaped forward. . . . I can very
         vaguely remember hitting my head on something. I can’t
         really recall what or where. The next thing I can
         remember is that it’s pitch black and I’m falling.



                     His recollection then becomes somewhat obscured, but

concludes that after he jumped he struck his head and somehow

fell backwards under the elevator and consequently down the

shaft.



                     The elevator stopped because the electrical power was

interrupted.                 Someone had dropped a ring of keys down the shaft

and the security or maintenance crew, in accordance with

University policy, brought the elevator to the first floor, to be

         1
                    Th e c a r wa s 6 X 4 f e e t , wi t h t wo d o o r s , e a c h a p p a r e n t l y t h r e e f e e t
wi d e .     Th i s f a c t i s s o me wh a t o b s c u r e d b e c a u s e a l e t t e r f r o m t h e Cl a i ma n t ’ s
c o u n s e l t o t h e S t a t e ’ s c o u n s e l d e s c r i b e s “ o n e d o o r t h r e e f e e t wi d e . ”

         2
                     Ap p a r e n t l y c a u s e d b y t h e p o s i t i o n i n g o f   a l a dde r   at   t he bot t om of
t he e l e va t or    shaf t .

                                                                  3
kept in place while someone went to the basement to retrieve the

keys.    The security officer instructed a student employee to keep

the elevator on the first floor.     She nevertheless disregarded

this instruction and allowed the elevator to rise to the fifth

floor.    When the security officer opened the basement door

allowing access to the bottom of the shaft, the power to the

elevator was automatically interrupted, thus stranding it for a

period of three to five minutes, which motivated the Claimant to

make his exit.



            The Commissioner held that the State’s conduct in

failing to take the elevator out of service was a lack of due

care because it violated standard procedures, and that such

failure was a proximate cause of the accident.    Thereupon, as

already noted, he apportioned 25 percent of the fault to the

Claimant and 75 percent to the State.



            Our review is de novo on the record, accompanied by a

presumption that the findings of fact of the trial court are

correct unless the evidence otherwise preponderates.    Rule 13(d),

Tennessee Rules of Appellate Procedure.    There is no presumption

of correctness with regard to the Commission’s determination of

questions of law.   NCNB Nat. Bank v. Thrailkill, 856 S.W.2d 150,

(Tenn.App.1993).



           There are five classical elements of common law

negligence: a duty of care owed by the defendant to the

plaintiff, a breach of that duty by a lack of due care, an injury

or loss, causation in fact and proximate or legal causation.

McClenahan v. Cooley, 806 S.W.2d 767 (Tenn.1991).    Proximate

                                 4
cause sufficient to impose liability on the defendant consists of

four elements: (1) a foreseeable risk; (2) the defendant’s

conduct was a substantial factor as a cause in fact of the harm;

(3) whether the plaintiff’s conduct was 49 percent or less

proportionately responsible for the harm; and (4) whether there

is a legal rule or policy which relieves the defendant from

liability.     McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992).



          The Commissioner found that it was reasonable for the

Claimant to conclude that it was necessary to exit the elevator

to preclude the risk of serious injury.    He reasoned that the

temperature inside the elevator and the clanging noises the

Claimant heard in combination justified his hasty exit.     In this

regard, Mr. Williams testified as follows:



          Q.    Who got in the elevator with you?

          A. Myself, Shane, Cara, there was a Resident
     Assistant for that floor, I can't recall her name, and
     her boyfriend, and I can't recall his name.

          Q. Now, was anybody on the elevator when the
     doors opened or was it empty?

          A.    It was empty.

          Q.    So it was empty and all of you got on?

          A.    Right.

          Q. Okay. After you all got on, what did you do
     next? Did you punch a button to go down?

          A.     We punched the button to go to the first
     floor.

          Q.     Did the elevator doors shut?

          A.    Yes, they did.

          Q.    And how far did the elevator descend?

          A. It was hard for us to tell. It was moving
     perfectly fine and then, for a while, it seemed like it

                                  5
wasn't moving at all and we didn't feel any motion and
it didn't feel like it was really solid either. It was
just kind of - almost felt like it was floating is the
best way I can describe it. After a short period of
time, I came to the conclusion that it was not moving.

     Q.   Did anybody ring the alarm bell?

     A. Yes, the Resident Assistant, and I can't
recall her name, rang the alarm bell. I heard it.

     Q.   What happened when you rang the alarm bell?

     A. The alarm sounded and I heard it and it was in
working condition.

     Q.   Did anybody come to your assistance?

     A. No. I did not hear anyone come to say that
someone was on their way. I didn't hear anything.

     Q.   What happened next?

     A. After waiting, I guess another minute, maybe
two, the Resident Assistant sounded the alarm again and
it sounded, I heard it. It was working.

     Q.   Did anybody come to your assistance that time?

     A.   No.

     Q.   Then what happened?

     A. I heard clanking noises. I can't really say
they were coming from below or above or where. It
sounded like it was definitely coming from within the
shaft itself.

     Q. Now, what type of clanking noise are we
talking about?

     A. It was like just a series of noise. It
sounded like something descending or ascending.

     Q.   Did it sound like metal?

     A.   Yes.

     Q.   Then what happened?

     A. Well, after waiting another two, maybe three
minutes, Shane went for the door and pried it open.

     Q. Now, Shane was your friend. During this whole
period of time, how many people were on the elevator?

     A.   Five, including myself.




                           6
          Q. How long do you believe that you were in this
     elevator before you tried to get out?

          A. I would approximate five minutes.    That would
     be my best guess.

          Q.   What was the temperature like in there?

          A. It was very hot. That building is not air
     conditioned. It was the end of August and there were
     five people in a small space and I was beginning to
     feel claustrophobic.

          Q.   Were you in fear of your life?

          A.   Yes.

          Q.   Why?

          A. When I heard those clanking noises, I felt
     that the elevator was not in any real stable position.
     I feared that it would fall and I would die and
     everybody else in it.

          Q. What was your understanding about prior
     problems with that elevator?

          A. It was my understanding that those elevators
     on campus did tend to break down which told me that
     they probably were not in particularly good condition
     and that anything could and possibly would happen.

          Q. Shane pries the elevator door open, what does
     Shane do?

          A. Shane jumps to the floor below. I would guess
     it was about four feet that he jumped. We were in
     between floors.

          Q.   And then you jumped?

          A. Right. Shane looked around some and then he
     motioned for me that I was to be the next one to jump.
     I was perched on the edge both feet flat on the floor
     facing forward. I paused maybe fifteen or twenty
     seconds, and then I leaped forward.

          Q.   What happened?

          A. I can very vaguely remember hitting my head on
     something. I can't really recall what or where. The
     next thing that I can remember is that it's pitch black
     and I'm falling.



          We reiterate that our review of the record persuades us

that the evidence does not preponderate against the

                                7
Commissioner's finding of fault as to the State or his

apportionment thereof between the parties.



          As to the final issue, the Commissioner admitted the

evidence of a medical expert that the Claimant acted reasonably

in prying open the doors and jumping from the elevator, which had

the untoward result of his falling down the elevator shaft.



          First, we observe that the trial court is accorded wide

discretion in the admission or rejection of expert testimony.

Otis v. Cambridge Mutual Fire Ins. Co., 850 S.W.2d 439

(Tenn.1992); Buchanan v. Harris, 902 S.W.2d 941 (Tenn.App.1995).



          Assuming, however, that the evidence was erroneously

admitted, upon our excluding it, we nevertheless find upon

viewing the record de novo, that the Claimant's actions under the

circumstances then obtaining--although not blameless--

contributed, as found by the Commissioner, 25 percent to the

injuries he sustained.



          For the foregoing reasons the judgment of the

Commissioner is affirmed and the cause remanded for collection of

the judgment and costs below.   Costs of appeal are adjudged

against the State.



                                     ____________________________ _ _
                                     Hous t on M Godda r d, P. J .
                                                .




                                 8
CONCUR:



_ _ _ _ _ _ _ ___________________ ______
Ch a r l e s D. Sus a no, J r . , J .



_ _ _ _ _ _ _ _________________________
W l l i a m H. I nma n, Sr . J .
  i




                                           9
                             IN THE COURT OF APPEALS OF TENNESSEE

                                      EASTERN SECTION AT KNOXVILLE                               FILED
                                                                                                     July 28, 1997

                                                                                                 Cecil Crowson, Jr.
                                                                                                 Appellate C ourt Clerk

JASON SCOTT WILLIAMS,                                        )         CLAIMS COMMISSION
                                                             )
          Plaintiff/Appellee                                           )    NO. 03A01-9610-BC-00338
                                                             )         (Claims Commission No. 02483)
v.                                                           )
                                                             )
STATE OF TENNESSEE,                                          )
                                                             )
          Defendant/Appellant                                )
                                                             )


                                                    D I S S E N T


                                                                                 INMAN, Senior Judge

          I regret my inability to concur with the majority opinion.

Given the less than fully developed facts of this accident3 I

think the majority opinion may be rationally cited for the

proposition that the owner of an elevator is, ipso facto, a

guarantor of the safety of the passengers thereon.

          The claimant was 19 years old when the accident occurred.

He was a former student at East Tennessee State University.                                                                 He

and a friend, Shane, were visiting the campus to assist Shane’s

girlfriend, Cara, in moving into the Lucille Clement Hall, a

five-story dormitory served by one or more automatic elevators,

in good working order.

          Cara’s room was on the fifth floor.                                        After about two hours,

the claimant, Shane, and Cara left her room and summoned the

elevator which, as it developed, was already at the fifth floor.


          3
            Ap p a r e n t l y b e c a u s e t h e S t a t e b e l i e v e d t h a t t h e c l a i m wa s s o i l l - f o u n d e d
t ha t   o n l y a mi n i ma l e f f o r t wa s r e q u i r e d o n i t s p a r t .

                                                                 10
In addition to these three, the Resident      Assistant of the

dormitory and her boyfriend entered the elevator which began its

descent after the first floor button was pushed.      It stopped

about half-way to the fourth floor, and the Resident Assistant

rang the alarm bell.   After waiting about a minute, she again

rang the alarm bell, but nobody responded.      The claimant says he

heard “clanking noises" and after about two minutes, Shane pried

the door open and jumped four feet to the fourth floor without

mishap.

     Shane thereupon motioned to the plaintiff      “that I was to be

the next one to jump.”   The plaintiff testified:

     “ . . . I was perched on the edge both feet flat on the
     floor facing forward. I paused maybe 15 or 20 seconds
     and then I leaped forwards . . . I can very vaguely
     remember hitting my head on something. I can’t really
     recall what or where. The next thing I can remember is
     that it’s pitch black and I’m falling . . . “

     His recollection then becomes somewhat obscured, but

concludes that after he jumped he struck his head and somehow

fell backwards under the elevator and consequently down the

shaft.

     The elevator stopped because the electrical power was

interrupted.   Someone had dropped a ring of keys down the shaft

and the security or maintenance crew, in accordance with

University policy, brought the elevator to the first floor, to be

kept in place while someone went to the basement to retrieve the

keys.    The security officer instructed a student employee to keep

the elevator on the first floor.      She nevertheless allowed the

elevator to rise to the fifth floor, and when the security

officer opened the basement door allowing access to the bottom of

the shaft, the power to the elevator was automatically

interrupted, thus stranding it for a period of three to five



                                 11
minutes, which motivated the plaintiff to make his hasty and ill-

advised exit.

      The Commissioner held that the State’s conduct in failing to

take the elevator out of service was a lack of due care because

it violated standard procedures, and that such failure was the

proximate cause of the accident, although he apportioned 25% of

the fault to the plaintiff.

      There are five classical elements of common law negligence:

a duty of care owed by the defendant to the plaintiff, a breach

of that duty by a lack of due care, an injury or loss, causation

in fact and proximate or legal causation.    McClenahan v. Cooley,

806 S.W.2d 767, 774 (Tenn. 1991).    Proximate cause sufficient to

impose

liability on the defendant consists of four elements: (1) a

foreseeable risk; (2) the defendant’s conduct was a substantial

factor as a cause in fact of the harm; (3) whether the

plaintiff’s conduct was 49% or less proportionately responsible

for   the harm; and (4) whether there is a legal rule or policy

which relieves the defendant from liability.    McIntyre, supra.

      Where the plaintiff is 50% or more responsible for the harm,

he cannot recover, McIntyre, Eaton, supra.

      As propounded in Eaton at 590, the question is: assuming

that both plaintiff and defendant have been found guilty of

negligent conduct that proximately caused the injuries, was the

fault attributable to plaintiff equal to or greater than the

fault attributable to the defendant?

      I may refer to familiar legal principles for a determination

of this issue.   Some of these, e.g., contributory negligence,

remote contributory negligence, last clear chance, assumption of

risk, sudden emergency, and the rescue doctrine, have been

                                12
subsumed by the comparative fault doctrine.                                              Eaton enumerates the

non-exclusive factors which determine proportional fault:

     (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.

     The Commissioner found that it was reasonable for the

plaintiff to conclude that it was necessary to exit the elevator

to preclude the risk of serious injury.                                          He reasoned that the

temperature inside the elevator and the clanging noises the

plaintiff heard in combination justified his hasty exit when

superimposed upon the testimony of Dr. Martin Gebrow, a

psychiatrist, that the plaintiff acted reasonably in jumping out

of the elevator.4

     My concern is not with the lack of evidence of negligence on

the part of the State.                        Its agents were derelict in their duty to

follow established procedures, and it is not profitable to

discuss the liability of the State (other than a brief reference

to the issue of foreseeability) in light of the overriding

principle that the equal or greater negligence of the plaintiff

is clearly apparent and consequently is destructive of his claim

under the established doctrine of comparative negligence.

     The plaintiff testified that he jumped from the elevator

because (1) the interior was hot, (2) he heard clanging noises,

and (3) he feared the elevator would fall.



     4
         Th e S t a t e ’ s o b j e c t i o n t o s u c h t e s t i mo n y s h o u l d h a v e b e e n s u s t a i n e d .

                                                              13
     The elevator had been stopped for three to five minutes. The

alarm was twice sounded.   There was no real cause for concern.      A

reasonable person should have known that there was a greater risk

in jumping from the elevator under the circumstances.     He was

aware of its position four feet above the fourth floor; his

friend Shane made the leap successfully and motioned to the

plaintiff to follow him; he was then 19 years old, had never

heard of an elevator falling, and was sufficiently mature to

gauge the respective merits of remaining in the elevator or

leaping from it under the suasion of his friend.    The

Commissioner found that plaintiff did not use due care in his

method of leaving the elevator, a finding with which I concur.       I

do not agree that the plaintiff should only be charged with 25%

of the responsibility for his accident; whatever a proper

apportionment might be, in my judgment 50% or more of the fault

which occasioned this accident should be attributable to the

plaintiff.

     The State argues that the Commission has made it the insurer

of the safety of all persons using the elevator, a role not

contemplated by negligence law.    See, Roberts v. Roberts, 845

S.W.2d 225 (Tenn. App. 1992).     I agree, because the plaintiff has

made no showing from which “it can be said that the State

reasonably knew or should have known of the probability of an

occurrence such as the one that caused the plaintiff’s injuries.”

     Foreseeability is the test of negligence, and it cannot be

said that the State reasonably should have foreseen that an

occupant of a stalled elevator would, less than five minutes

after being stranded, undertake a departure in the manner shown.

The test of reasonableness is an objective one; how would a

reasonable person gauge the risks, and how would he react?     The

                                  14
Commissioner applied an impermissible subjective standard, one

that is entirely dependent upon the plaintiff’s perception of the

risk factors, those being the temperature,5 the clanging noises,

and fear of falling.

          The plaintiff’s exit                        from the elevator was, at once,

unnecessary, unthoughtful, and likely the product of impatience

or bravado, on the one hand, and negligently performed, on the

other, as evidenced by the successful departure of Shane.                                                              His

conduct in confronting the perceived risk was not reasonable,

Eaton, supra, since he was unwilling to tolerate a few moments of

inconvenience.                     A stalled elevator is a not uncommon occurrence,6

because it is powered by electric current which occasionally may

be interrupted.                      If the circumstances are exigent, a decision to

exit may be justified even though hindsight judgment proved the

exit was improvident, but here the circumstances were not exigent

and the plaintiff merely allowed himself to follow the example of

Shane.             I can find no precedential authority in this jurisdiction

or elsewhere which impresses liability upon the owner of an

elevator under similar facts.


                                                            __________________________________
                                                            William H. Inman, Senior Judge




          5
             Th e r e i s n o e v i d e n c e o f t h e t e mp e r a t u r e i n t h e e l e v a t o r .        I t ma y
l o g i c a l l y b e i n f e r r e d t h a t , e v e n a b s e n t a i r - c o n d i t i o n i n g i n Au g u s t , t h e
t e mp e r a t u r e i n a l l p r o b a b i l i t y wa s n o t b e y o n d e n d u r a n c e a f t e r f i v e mi n u t e s ’
c o n f i n e me n t .   W e t h e r t h e e l e v a t o r wa s e q u i p p e d wi t h a f a n i s n o t s h o wn .
                          h

          6
              He n c e ,   t he a l a r m be l l .

                                                               15
