                      IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE

  IDA FAYE WINSTEAD, ET AL. v. GOODLARK REGIONAL MEDICAL
                        CENTER, INC.

                     Direct Appeal from the Circuit Court for Dickson County
                               No. CV-344 Allen Wallace, Judge


                      No. M1997-00209-COA-R3-CV - Decided April 4, 2000


This appeal involves a pedestrian who slipped and fell on a brightly painted sloping access ramp cut
into the sidewalk near the entrance of the Goodlark Regional Medical Center in Dickson. The
pedestrian and her husband filed suit in the Circuit Court for Dickson County alleging that the
hospital=s maintenance of the ramp had created a dangerous condition on the sidewalk. A jury found
the hospital sixty percent at fault and awarded the pedestrian and her husband $103,800. The trial
court denied the hospital=s motions for a new trial, a judgment in accordance with its motion for a
directed verdict, or a remittitur. The hospital asserts on this appeal that the trial court erred by failing
to grant its motion for a judgment in accordance with its motion for a directed verdict. We have
determined that the trial court properly denied the hospital=s post-trial motions and, accordingly, we
affirm the judgment.


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

KOCH, J., delivered the opinion of the court, in which TODD, P.J., M.S., and CANTRELL, J., joined.

Thomas M. Pinckney, Jr. and Susan D. Bass, Nashville, Tennessee, for the appellant, Goodlark
Regional Medical Center, Inc.

Joe Bednarz and Joe Bednarz, Jr., Nashville, Tennessee, for the appellees, Ida Faye Winstead and
Don Winstead.

                                                OPINION

        The entrance to the Goodlark Regional Medical Center is separated from the driveway and
parking lot by a concrete sidewalk. The curb of the sidewalk closest to the driveway is painted red.
Because the surface of the sidewalk is higher than the surfaces of the driveway and parking lot,
Goodlark constructed a sloped ramp in the sidewalk near its entrance to facilitate the movement of
persons with disabilities between the parking lot and the front door. The entire ramp is painted bright
yellow and usually contains four or five black traction strips running parallel to the direction of
pedestrian traffic on the sidewalk to provide extra traction for persons using the ramp. A trial exhibit
depicted the customary condition of this ramp as follows:




         The effects of weather and pedestrian traffic on the access ramp required Goodlark to
periodically repaint the ramp and to replace the black traction strips. When Goodlark=s maintenance
personnel repaint the ramp, they remove the existing traction strips, repaint the entire ramp, and then
install new traction strips after the paint dries. While the entire process generally requires less than
one day to complete, rainy weather can delay replacing the traction strips because these strips cannot
be affixed on a wet surface.



        Ida Winstead and her husband both had diagnostic tests scheduled at Goodlark on March 2,
1993. Ms. Winstead had been to Goodlark on numerous occasions over the years and was familiar
with the entrance, the sidewalk, and the access ramp in the sidewalk. On this particular day, the black
traction strips were not on the access ramp because the ramp had recently been painted and because
rain had delayed the installation of the new strips. The maintenance personnel had not placed cones,
signs, or other devices around the ramp to warn pedestrians to avoid it. An exhibit introduced at trial
portrayed the condition of the access ramp when Ms. Winstead fell as follows:




                                                  -2-
                   It was raining lightly when Ms. Winstead and her husband left the hospital following their
           appointments. They were walking along the sidewalk toward the parking lot when another pedestrian
           approached them walking toward the hospital=s front door. Ms. Winstead kept walking but moved to
           the outside portion of the sidewalk near the red curb to permit the approaching pedestrian to pass.
           When she arrived at the access ramp in the sidewalk, she stepped on the most steeply sloped portion
           of the ramp=s flared sides which were wet with rain. As she stepped on the ramp, Ms. Winstead lost
           her footing and fell, fracturing her kneecap.

                    Ms. Winstead and her husband filed suit against Goodlark in the Circuit Court for Dickson
           County asserting that the hospital had created or maintained a dangerous condition in the sidewalk.1
           At trial, the Winsteads argued to the jury that Goodlark had been negligent either because it did not
           paint the sidewalk with non-skid paint, because it did not immediately replace the traction strips, or
           because it failed to rope off the access ramp until the traction strips had been replaced. Goodlark
           responded by asserting that it had chosen the correct paint for the access ramp and that Ms.
           Winstead=s inattentiveness caused her to fall because the brightly painted access ramp was Aopen and
           obvious@ to pedestrians using the sidewalk.

                   The jury determined that Ms. Winstead was forty percent at fault and that Goodlark was sixty
           percent at fault. The jury also determined that Ms. Winstead=s damages were $167,000 and that Mr.
           Winstead=s damages were $6,000. Accordingly, the trial court entered a $100,200 judgment for Ms.
           Winstead and a $3,600 judgment for Mr. Winstead. In its post-trial motions, Goodlark asserted that it
           was entitled to a new trial, that it was entitled to a judgment in accordance with its motion for a
           directed verdict at the close of all the proof, or, in the alternative, that it was entitled to a remittitur.
           The trial court denied the motions and approved the jury=s verdict.

                                                                I.
                                                    STANDARD OF REVIEW

                   Goodlark asserts on this appeal that the trial court erred by failing to grant its Tenn. R. Civ. P.
           50.02 motion for a judgment in accordance with its motion for a directed verdict.2 Appellate courts
           use the same standard for reviewing the denial of a Tenn. R. Civ. P. 50.02 motion that they use for
           reviewing the denial of a Tenn. R. Civ. P. 50.01 motion for a directed verdict. See Holmes v. Wilson,
           551 S.W.2d 682, 685 (Tenn. 1977). Accordingly, appellate courts do not weigh the evidence, see
           Conaster v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Benton v.
           Snyder, 825 S.W.2d 409, 413 (Tenn. 1992), or evaluate the credibility of the witnesses. See Benson
           v. Tennessee Valley Elec. Coop., 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Rather, they
   1
    The Winsteads also named The Jackson Clinic as a defendant but later voluntarily dismissed their claims against
The Jackson Clinic because the clinic did not own or control the premises where Ms. Winstead fell.
   2
    These motions are also known in state court as a motion for judgment notwithstanding the verdict or j.n.o.v.
(judgment non obstante verdicto) or in federal court as a post-verdict judgment as a matter of law in accordance with
Fed. R. Civ. P. 50(b).




                                                               -3-
           review the evidence most favorably to the party against whom the motion is made, give that party the
           benefit of all reasonable inferences from the evidence, and disregard all evidence contrary to that
           party=s position. See Eaton v. McClain, 891 S.W.2d 587, 590 (Tenn. 1994); Gann v. International
           Harvester Co., 712 S.W.2d 100, 105 (Tenn. 1986).

                   Granting a Tenn. R. Civ. P. 50.02 motion is appropriate only when the evidence is
           insufficient to create an issue for the jury to decide, see Underwood v. Waterslides of Mid-America,
           Inc., 823 S.W.2d 171, 176 (Tenn. Ct. App. 1991); Norman v. Liberty Life Assurance Co., 556 S.W.2d
           772, 773 (Tenn. Ct. App. 1977), or when reasonable minds can reach only one conclusion. See
           Williams v. Brown, 860 S.W.2d 854, 857 (Tenn. 1993); Crosslin v. Alsup, 594 S.W.2d 379, 380
           (Tenn. 1980). A jury=s verdict should not be supplanted under Tenn. R. Civ. P. 50.02, even if the
           facts are undisputed, when reasonable persons could draw conflicting conclusions from the facts. See
           Gulf, M. & O.R.R. v. Underwood, 182 Tenn. 467, 474, 187 S.W.2d 777, 779 (1945); Pettus v. Hurst,
           882 S.W.2d 783, 788 (Tenn. Ct. App. 1993).

                                                       II.
                                     GOODLARK=S TENN. R. CIV. P. 50.02 MOTION

                   Goodlark advances three theories to support its argument that the trial court should have
           granted its Tenn. R. Civ. P. 50.02 motion for a judgment in accordance with its motion for a directed
           verdict. First, it asserts that it had no duty to warn pedestrians of the access ramp because its
           condition was open and obvious. Second, it asserts that it discharged its duty to warn pedestrians of
           the ramp by painting the ramp bright yellow. Third, it asserts that Ms. Winstead was at least fifty
           percent at fault because she failed to watch her step when she walked across the access ramp. We
           will take up each of these arguments in turn.

                                                      A.
                                THE OPENNESS AND OBVIOUSNESS OF THE ACCESS RAMP

                   Many traditional, common-law tort concepts lost their independent existence after the
           Tennessee Supreme Court embraced the doctrine of comparative fault in McIntyre v. Balentine, 833
           S.W.2d 52 (Tenn. 1992). In the years since the McIntyre decision, the contributory negligence
           doctrine, the last clear chance doctrine, the sudden emergency doctrine, the rescue doctrine, and the
           doctrine of secondary implied assumption of the risk have been merged into the comparative fault
           scheme and are simply factors to consider when apportioning fault among the parties. See Eaton v.
           McClain, 891 S.W.2d at 592; Perez v. McConkey, 872 S.W.2d 897, 905 (Tenn. 1994). The Aopen
           and obvious@ doctrine3 has not met the same fate. Even though its lineage can be traced to the
           doctrine of assumption of the risk, the Tennessee Supreme Court has declined to treat the Aopen and
   3
     The open and obvious doctrine provided that a premises owner was not liable for injuries caused by dangers that are
Aobvious, reasonably apparent, or as well known to the invitee as to the owner.@ Kendall Oil Co. v. Payne, 41 Tenn. App.
201, 205, 293 S.W.2d 40, 42 (1955). It was premised on the belief that an Ainvitee assumes all normal and obvious risks
attendant to the use of the premises.@ Kendall Oil Co. v. Payne, 41 Tenn. App. at 205-06, 293 S.W.2d at 42.




                                                            -4-
          obvious@ doctrine as one of the factors to consider when apportioning fault among the parties.
          Instead, the Court has Alimited@ the doctrine by holding that a property owner will not be relieved of
          its duty to exercise reasonable care simply because a dangerous condition is open and obvious. See
          Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998).4 While the openness and obviousness of
          an allegedly dangerous condition is a factor for the court to consider when determining the existence
          and extent of a property owner=s duty, the Court has held that Athe duty issue must be analyzed with
          regard to [the] foreseeability and gravity of [the] harm, and the feasibility and availability of
          alternative conduct that would have prevented the harm.@ Coln v. City of Savannah, 966 S.W.2d at
          43.

                   The Tennessee Supreme Court, employing the Coln rule, held that a three-eighths inch
          change in elevation between a brick sidewalk and a concrete sidewalk, although open and obvious,
          created a foreseeable risk of harm that was actually known by the city. This knowledge, coupled with
          the city=s actual knowledge of the availability of corrective measures, warranted a conclusion that the
          city owed a duty to the public to either remove or repair the condition. In the Court=s words, Athe risk
          of harm was unreasonable despite its open and obvious nature and the foreseeability and gravity of
          harm, therefore, outweighed the burden imposed in protecting against the harm.@ Coln v. City of
          Savannah, 966 S.W.2d at 44.

                  The Tennessee Supreme Court employed the same analysis in a companion case to Coln.
          There the homeowners left an 18" H 3' hole in their pool deck after they removed a skimmer used to
          clean the pool. A guest who fell into the uncovered hole sued the homeowners, but the trial court
          granted the homeowners a summary judgment based on the Aopen and obvious@ doctrine. In
          reversing the summary judgment, the Court held that despite the openness and obviousness of the
          large hole in the pool deck, there existed material factual disputes regarding whether the homeowners
          owed a duty to their guest because the foreseeability and gravity of the harm outweighed the burden
          of protecting against the harm. See Coln v. City of Savannah, 966 S.W.2d at 46.

                  Goodlark asserted at trial and argues on appeal that it owed no duty to protect pedestrians
          from the danger of slipping and falling on the access ramp because it was Aopen and obvious,@ having
          been painted yellow to differentiate it from the surrounding unfinished concrete sidewalk. Based on
          the reasoning of the Coln decision, Goodlark=s lack-of-duty argument cannot succeed. Goodlark=s
          maintenance personnel were aware of the access ramp and of the possibility that it could pose a
          hazard to persons entering and leaving the hospital. It is reasonable to conclude that this knowledge
          prompted Goodlark to paint the ramp yellow and to install traction strips. It is also undisputed that
          Goodlark=s maintenance personnel knew that the access ramp required periodic maintenance and that
   4
     Lest we be accused of reading the Court=s Coln opinion too narrowly, we point out that the Court itself stated that
the separate analysis of duty, including the consideration of the openness and obviousness of the danger, has not been
totally subsumed into the allocation of fault. See Coln v. City of Savannah, 966 S.W.2d at 44. Likewise, the author of a
separate concurring opinion took her colleagues to task for not concluding that Athe doctrine of >open and obvious= has
been subsumed into the comparative fault scheme.@ Coln v. City of Savannah, 966 S.W.2d at 47 (Holder, J.,
concurring).




                                                            -5-
          if not properly maintained, it could pose a danger to pedestrians entering and leaving the hospital.

                  In light of the evidence that the jury heard, a reasonable fact-finder could conclude that it was
          foreseeable that an improperly maintained access ramp could cause injury to pedestrians. A
          reasonable fact-finder could also conclude that the gravity of the potential injury outweighed the
          burden of properly maintaining the ramp. Accordingly, Goodlark was not entitled to a Tenn. R. Civ.
          P. 50.02 judgment notwithstanding the verdict solely on the ground that the access ramp was open
          and obvious.

                                                       B.
                                       GOODLARK=S MAINTENANCE OF THE RAMP

                  Goodlark also asserts that it was entitled to a judgment in accordance with its motion for a
          directed verdict because it discharged its duty by painting the access ramp with bright yellow paint.
          While painting the ramp may very well have discharged Goodlark=s duty to warn pedestrians of the
          ramp=s existence, it does not necessarily foreclose the possibility that a reasonable fact-finder could
          conclude that either the hospital=s choice of paint or the manner in which it maintained the ramp
          caused the ramp to be more dangerous than it might otherwise have been.

                  The Winsteads= theory of negligence, reduced to its essence, is that a freshly painted access
          ramp without the traction strips reinstalled was more slippery when rained upon than a ramp painted
          with non-skid paint or a ramp with traction strips. Accordingly, the Winsteads argued that Goodlark=s
          maintenance employees should have either painted the ramp with non-skid paint, reinstalled the
          traction strips more quickly, or blocked off the ramp while it was being maintained.5 The record
          contains sufficient evidence to take these questions to the jury.

                  Two former Goodlark maintenance personnel testified at trial. Both stated that the hospital
          painted the access ramp with the same yellow flat highway paint that was customarily used on streets,
          parking lots, and warehouse and factory floors and that the traction strips were not replaced for two or
          three days after the ramp had been repainted because it had been raining. They also conceded that no
          warning devices had been placed near the access ramp while it was being painted or before the
          traction strips were reinstalled.

                  One employee stated that he was familiar with non-skid paint, that flat paint was Aslicker@
          than non-skid paint, and that using non-skid paint would have eliminated the need for the black
          traction strips. He also testified that the hospital could have used non-skid paint to paint the ramp
          before Ms. Winstead fell but had chosen to use the flat paint instead because there was still a supply
   5
    During his closing argument, the Winsteads= lawyer told the jury that Athe first thing . . . [a careful reasonable
business] would have done is that they would have used non-skid paint. It=s that simple.@ Later in his argument, the
Winsteads= lawyer stated that the Athe act of negligence that caused this injury@ was that the hospital maintenance
personnel left the ramp without strips and that Athe strips should have been put down, or it [the area] should have been
blocked off at that time.@




                                                            -6-
of it on hand. Although the other maintenance employee was unfamiliar with the non-skid paint
when Ms. Winstead fell, he stated that he assumed that painted concrete had less traction than
unpainted concrete and that stepping on a painted slope when it was raining would be more slippery
than stepping on an unpainted slope. This employee also testified, without objection, that Goodlark
discontinued using the traction strips and began using non-skid paint after Ms. Winstead fell because
the non-skid paint provided better traction over the entire surface of the access ramp and because the
traction strips required too much maintenance.

        Property owners and businesses must exercise reasonable care to protect their customers and
guests from unreasonable risks of harm. See Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn. 1984);
Jones v. Exxon Corp., 940 S.W.2d 69, 71 (Tenn. Ct. App. 1996). That duty normally includes
maintaining the premises in a generally safe condition by removing or repairing potentially dangerous
conditions or by helping customers and guests avoid injury by warning them of the existence of the
dangerous condition. See Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn. 1996); Eaton v. McClain,
891 S.W.2d at 593-94. A condition will be considered dangerous if it is reasonably foreseeable that
the condition will cause injury and that a reasonably prudent property owner would not maintain the
premises in such a state. See McCall v. Wilder, 913 S.W.2d. 150, 153 (Tenn. 1995); Doe v. Linder
Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992).

        To succeed with a negligence claim, a plaintiff must establish the following elements of
proof: (1) a duty of care owed by the defendant to the plaintiff, (2) conduct by the defendant
breaching that duty, (3) an injury or loss to the plaintiff, (4) causation in fact, and (5) proximate or
legal cause. See McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991). If the plaintiff makes
out a prima facie negligence claim, the burden of going forward with the evidence shifts to the
defendant. After the burden shifts, the defendant must negate one or more of the essential elements of
the plaintiff=s negligence claim.

        The parties in this case do not dispute the existence and scope of a property owner=s duty of
care. Like any other property owner, Goodlark was required to maintain its premises in a reasonably
safe condition. There is likewise little dispute regarding injury, causation in fact, and legal causation.
 Ms. Winstead injured her knee when she fell on the access ramp and the condition of the access ramp
was a cause in fact and legal cause of Ms. Winstead=s fall. Thus, the pivotal, and most hotly
contested, issue at trial was whether Goodlark had maintained the access ramp in a manner that
breached its duty of care.

         The former hospital employees testified that concrete surfaces painted with flat paint are
Aslicker@ than unpainted surfaces and that a sloping surface painted with flat paint has less traction
than an unpainted sloping surface. From this evidence, a reasonable fact-finder could conclude that
Goodlark=s maintenance personnel should have foreseen that persons could fall on the newly painted
access ramp if rained upon before the traction strips were reinstalled. Because of the foreseeability of
the injury, a reasonable fact-finder could also have concluded that the gravity of the possible injury
outweighed the burden that would have been placed on the hospital had the hospital used non-skid
paint, reinstalled the traction strips more quickly, or placed warnings around the access ramp until the
maintenance personnel completed their work.



                                                   -7-
         The Winsteads made out a prima facie negligence case. Accordingly, the burden shifted to
Goodlark to convince the jury that its decision to use flat traffic paint was consistent with its duty of
reasonable care. The sole witness offered by the hospital did not provide evidence that was so
compelling that it would have required the jury to agree with the hospital=s assertion that it did not
breach the duty it owed to persons entering and leaving the hospital by painting the access ramp with
flat traffic paint. Accordingly, Goodlark is not entitled to a Tenn. R. Civ. P. 50.02 judgment in
accordance with its motion for a directed verdict based on the theory that it maintained the access
ramp properly.

                                                    C.
                                 THE JURY=S ASSESSMENT OF FAULT

        Finally, Goodlark asserts that it was entitled to a judgment notwithstanding the verdict
because Ms. Winstead was at least fifty percent at fault for failing to exercise due care for her own
safety by watching where she was walking. We likewise find this argument to be without merit.

          The jury apportioned the fault between the parties by determining that Ms. Winstead was
forty percent at fault and that Goodlark was sixty percent at fault. The jury=s allocation was approved
by the trial court as thirteenth juror. Even if the trial court had disagreed with the jury=s allocation of
fault, it could not have reallocated the fault. See Turner v. Jordan, 957 S.W.2d 815, 823-24 (Tenn.
1997). Like the trial court, we cannot reallocate fault on appeal from a jury verdict even though we
may alter a trial court=s allocation of fault following a bench trial. See Coln v. City of Savannah, 966
S.W.2d at 44. Thus, we decline the invitation to alter the jury=s allocation of fault between Ms.
Winstead and Goodlark.

         We reach a similar conclusion with regard to Goodlark=s argument that Ms. Winstead was at
least fifty percent at fault as a matter of law. That conclusion is not the only one supported by the
evidence. It may very well be, as a matter of law, that Ms. Winstead should have been aware of the
existence of the access ramp because it was painted bright yellow to differentiate it from the
surrounding concrete sidewalk. However, the fact that the ramp was painted yellow did not, as a
matter of law, put Ms. Winstead on notice that the ramp=s sloped sides might be more slippery when
rained upon than the surrounding unpainted concrete or that the customary traction strips had been
removed while the ramp was being repainted. Accordingly, Goodlark was not entitled to a Tenn. R.
Civ. P. 50.02 judgment in accordance with its motion for a directed verdict on the ground that Ms.
Winstead was, as a matter of law, at least fifty percent at fault for her injuries.

                                                   III.

        We affirm the judgment and remand the case to the trial court for whatever further
proceedings may be required. We also tax the costs of this appeal to Goodlark Regional Medical
Center, Inc. and its surety for which execution, if necessary, may issue.




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