                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     MARCH 2000 Session

       SHELIA RAE GIBBS, ET AL. v. ROBIN MEDIA GROUP, ET AL. v.

                            LINEBERRY PROPERTIES, INC.

                  A Direct Appeal from the Circuit Court for Wilson County
                         No. 9215; The Honorable Clara Byrd, Judge


                    No. M1999-00820-COA-R3-CV - Filed August 25, 2000


        This appeal arises from a slip-and-fall accident which occurred on property owned by the
Defendant Lineberry Properties and leased by the Defendant Robin Media Group. The latter appeals
from the jury verdict entered in the Wilson County Circuit Court. The jury assigned one hundred
percent of the fault for the Plaintiff’s injuries to Robin Media. After the court denied its motions for
remittitur or a new trial, the present appeal arose.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which FARMER , J. and LILLARD, J.,
joined.

Julie-Karel Elkin, Nashville, for Appellant

Hugh Green, Lebanon, for Appellees, Shelia Rae Gibbs & Charles David Gibbs
Keene W. Bartley, Nashville, for Appellee, Lineberry Properties, Inc.




                                              OPINION

Robin Media Group appeals from a jury verdict entered in the Wilson County Circuit Court. For the
reasons stated herein, we affirm the trial court decision.

                                   Facts and Procedural History

       On January 21, 1994, Sheila Gibbs (“Plaintiff”) traveled to the Mt. Juliet, Tennessee office
of Robin Media Group (“InterMedia” or “Appellant”) for the purpose of exchanging a defective
cable box.1 Prior to January 21, the Wilson County area had experienced sleet and snow, and ice had
accumulated on the sidewalk and steps leading to the Appellant’s office. Mrs. Gibbs entered the
building via steps which she noticed to be icy. She went into the building and transacted her
business. Upon exiting the office, Mrs. Gibbs proceeded down the steps where she slipped and fell.
As a result of the fall, Mrs. Gibbs suffered several serious injuries.

        The Plaintiffs filed suit against Robin Media Group, Inc., d/b/a InterMedia. InterMedia
answered the complaint and denied that it had possession or control of the portion of the premises
where Mrs. Gibbs fell. The Plaintiffs filed an amended complaint on December 10, 1996, in which
they added Lineberry Properties, Inc. (“Lineberry”) as a defendant. Lineberry was the owner of the
property, and the InterMedia office was operated under a lease agreement with Lineberry. After
Lineberry became a party to the lawsuit, Lineberry and InterMedia filed cross-claims against each
other seeking indemnification in the event a judgment was rendered in favor of the plaintiffs. Both
defendants also filed motions for summary judgment, arguing that neither had a duty to remove the
ice and snow from the premises. Both parties’ motions were denied.

        The lease agreement between the parties had been prepared by William Farmer, a corporate
officer of InterMedia. The lease provided that the Appellant was responsible for “maintenance
inside” the building, while Lineberry was responsible for “maintenance outside” the building. The
agreement did not specifically include or exclude the steps and sidewalk as being within the area
termed “outside.” Additionally, snow and ice removal was not enumerated as being included within
the term “maintenance.”

        After Mrs. Gibbs fell, Rae Taylor, an InterMedia employee, called an ambulance and
someone contacted Mrs. Gibbs’ husband, Charles. Upon arriving at the InterMedia office, Mr.
Gibbs learned that his wife had already been taken away by the ambulance. Mr. Gibbs had a
conversation with Rae Taylor in which the latter stated, “I had told them that someone was going to
fall and they need to get this ice up.” Taylor also stated, “Now that they’ve fallen, they’re doing
something about it.” At that time, Mr. Gibbs saw someone placing salt on the steps and sidewalk.2

        At trial, the court admitted, over InterMedia’s objection, the deposition testimony of Brenda
Scott, InterMedia’s representative. That testimony dealt with the internal policies of InterMedia
regarding the safety of customers on its premises. The court also admitted, once again over
InterMedia’s objection, the statements of Rae Taylor made to Mr. Gibbs after the accident. Finally,
the court denied InterMedia’s motion in limine to exclude evidence showing that InterMedia
employees took measures to remove the ice from the steps after Mr. Gibbs’ accident. The jury
rendered a verdict in favor of the plaintiff in the total amount of $115,000. The jury assigned 100%


         1
          The defendant Robin Media Group operated under the name “InterMedia” or “Tennessee Valley
CableVision.” We shall refer to the entity as “InterMedia.”

         2
            Jeffrey Roarke, also an InterMedia employee, testified that he was contacted by a supervisor and told to put
salt on the steps at the Mt. Julie t office.

                                                          -2-
of the fault to InterMedia. Finally, the jury determined that neither defendant had breached the terms
of the lease agreement. This appeal followed.


                                                   Law and Analysis

        InterMedia has presented the following issues for our consideration: 1) whether the court
erred in admitting the statements of Rae Taylor, 2) whether the court erred in admitting evidence
of InterMedia’s subsequent remedial measures, 3) whether the court erred in admitting evidence
regarding InterMedia’s internal policies and procedures, 4) whether there is material evidence to
support the jury’s verdict, 5) whether specific terms in the lease agreement between Lineberry
and InterMedia were ambiguous, and 6) whether the court erred in its instructions regarding the
interpretation of the lease agreement. We shall consider each of these issues in turn.

                                             I. Statements of Rae Taylor

       InterMedia claims that the statements of Rae Taylor, introduced through the testimony of
Charles Gibbs, were inadmissible hearsay. An evidentiary ruling by the trial court is a question of
law, and our standard of review is de novo with no presumption of correctness. City of Tullahoma
v. Bedford County, 938 S.W.2d 408 (Tenn. 1997).

         Much of the debate between the parties regarding this issue centers on the question of
whether the statements qualify as an exception under Rule 803(1.2)(D) of the Tennessee Rules of
Evidence. We do not, however, believe that the analysis ever gets to that point because the statement
is not hearsay.

         Hearsay is defined as a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted. T.R.E. 801(c). The
statement at issue is Rae Taylor’s statement, “I had told them that someone was going to fall and
they need to get this ice up.”3 This statement is clearly an out-of-court statement, and, in that regard,
it satisfies the hearsay definition. However, we must also consider whether the statement was
offered into evidence to prove “the truth of the matter asserted.” The matter asserted is that Rae
Taylor told “them” that someone was going to fall and the ice needed to be removed. The statement
is removed from the realm of hearsay because the actual truth of that assertion is irrelevant. The
statement was not presented as proof that Rae Taylor told anyone about the ice. The statement was
presented to show that someone with InterMedia, namely Rae Taylor, had knowledge that ice had
built up on the steps and/or sidewalk.



         3
            To the ex tent InterM edia claims e rror in the trial co urt admitting T aylor’s stateme nt that, “Now that they’ve
fallen, they’re doing something about it,” we believe the decision wa s harmless error. InterMedia does not dispute the
subsequent remedial m easures whic h were und ertaken. T aylor’s stateme nt is only further evidence of those measures,
and its exclusio n would ha ve had little, if any, pra ctical effect.

                                                             -3-
        We believe it to be clear that the statement presented is not hearsay. The very act of making
the statement is evidence that Rae Taylor had knowledge of the dangerous condition. Her
knowledge, regardless of whether that knowledge was conveyed to anyone else at InterMedia, was
sufficient to put InterMedia on notice of the dangerous condition, thereby invoking a duty of care.
See The Vogue, Inc. v. Cox, 190 S.W.2d 307 (Tenn. Ct. App. 1945).

                                 II. Subsequent remedial measures

       InterMedia also claims error in the trial court’s admission of evidence showing that
InterMedia employees took measures to rid the steps of ice immediately following the accident.
InterMedia claims that the act of salting the steps and sidewalks was a non-admissible, subsequent
remedial measure under Rule 407 of the Tennessee Rules of Evidence. Rule 407 provides:

       When, after an event, measures are taken which, if taken previously, would have
       made the event less likely to occur, evidence of the subsequent remedial measures
       is not admissible to prove strict liability, negligence, or culpable conduct in
       connection with the event. This rule does not require the exclusion of evidence
       of subsequent measures when offered for another purpose, such as proving
       controverted ownership, control, or feasibility of precautionary measures, or
       impeachment.

(Emphasis added). InterMedia apparently recognizes that this evidence also goes to the issue of
control, which would clearly remove it from the purview of Rule 407. However, InterMedia argues
that this “one instance should not constitute evidence of control.” Unfortunately, InterMedia’s
position is clearly contrary to the above-quoted rule. Control of the steps and sidewalk was an issue
of paramount importance in this case, and Rule 407 plainly provides that it does not preclude
evidence tendered for the purpose of proving control. InterMedia’s act of performing these remedial
measures was clearly admissible under Rule 407, and we find no basis for concluding that the trial
court erred in this regard.

                                 III. InterMedia’s internal policies

        Brenda Scott served as the personal representative of InterMedia for the purposes of this case,
and the plaintiffs introduced portions of her deposition testimony at trial. InterMedia objected to the
introduction of testimony relating to its internal policies and procedures regarding the safety of
customers. In essence, Ms. Scott testified that it was InterMedia’s policy to maintain a safe premises
for customers regardless of issues such as ownership or control. She further testified that this policy
would encompass the removal of snow and ice from the steps and sidewalk. InterMedia objected




                                                 -4-
to this testimony based on rule 403 of the Tennessee Rules of Evidence.4

        Rule 403 of the Tennessee Rules of Evidence precludes the admission of evidence when
“its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” InterMedia claims that the admission of its internal policies
prejudiced its case insofar as the jury might have equated a breach of those procedures with a breach
of legal duty. Even if we were to agree that the possibility of confusion existed, that mere possibility
is not enough, under 403, to exclude the evidence. The very language of the rule places the burden
upon the party seeking to exclude the evidence by requiring that the probative value be substantially
outweighed by the dangers. The relevance and probative value of this evidence is clear. As we
stated previously, issues of control and responsibility are of extreme importance as they relate to the
steps and sidewalk outside the InterMedia office. We are unable to say that this evidence was
unfairly prejudicial at all, much less substantially so. Accordingly, we find no error in the trial
court’s admission of this evidence.

                                IV. Material evidence to support the jury verdict

         InterMedia claims there is no material evidence to support the finding that they are 100% at
fault for Mrs. Gibbs’ injuries. Specifically, InterMedia claims that Lineberry or Mrs. Gibbs herself
should have been apportioned some of the fault.5

       This court’s role in regards to the present issue does not allow us to reweigh the evidence or
consider where the preponderance lies. Instead, we must determine whether there is any material
evidence to support the verdict, and, if there is, we must affirm the judgment. See Reynolds v.
Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994); Pullen v. Textron, Inc., 845 S.W.2d
777, 780 (Tenn. Ct. App. 1992). We are required to take the strongest legitimate view of the
evidence in favor of the verdict, assume the truth of the evidence in support thereof, allow all
reasonable inferences to sustain the verdict and disregard all to the contrary. Hobson v. First State
Bank, 777 S.W.2d 24 (Tenn. Ct. App. 1989).

        In regards to Mrs. Gibbs, InterMedia argues that a percentage of fault should have been
attributed to her because she voluntarily attempted to traverse the icy steps. Essentially, InterMedia
claims that Mrs. Gibbs’ actions were unreasonable under the circumstances. However, there is no
indication that Mrs. Gibbs was careless or failed to exercise reasonable care. Mrs. Gibbs was


         4
            InterMe dia also claim s to base its objection to this evidence on rule 406, which deals with habits or routine
practices. However, Rule 406 only operates as an avenue for the admission of evidence. It does not provide a basis for
excluding e vidence. T he only reaso n to consider Rule 406 in this case would be if that rule served as the basis for the
trial court’s decisio n to admit evide nce of InterM edia’s internal policies and procedures. This does not appear to be the
case. Therefore we shall not consider Rule 406.

         5
             In this section, we shall only deal w ith the verdict as it re lates to Mr s. Gibbs. W e will consider this issue as
it relates to Lineberry in the subsequent sections of the opinion.

                                                              -5-
confronted with the decision of whether to maneuver the ice in order to enter the building. It does
not appear that she would have been able to enter the building without encountering ice.6 Her
voluntary decision to maneuver the ice does not necessarily make her careless. In Hellon v.
Trotwood Apartments, Inc., 460 S.W.2d 372 (Tenn. Ct. App. 1970), the court stated:

         Where, however, the known danger is not readily avoidable and is such as to
         effectively obstruct the path of plaintiff, plaintiff is put to the decision of whether he
         will take the inevitable risk of proceeding through the danger or will abandon his
         intended course and destination altogether. When such a situation presents itself,
         the question of whether the plaintiff undertook a greater risk than an ordinarily
         prudent person would take under the circumstances is usually for the jury. 7

Faced with the facts, the jury returned a verdict finding no fault lay with Mrs. Gibbs. As stated
previously, it is not this court’s place to usurp the judgment of the jury unless no material evidence
supports the jury’s decision. In the present case, there was ample evidence upon which InterMedia’s
liability could be predicated. The question of whether some percentage of the fault should have been
attributed to Mrs. Gibbs was properly left to the jury, and we have neither the authority nor the
inclination to disturb the verdict.

                                       V. Ambiguity in the lease agreement

        In this issue, InterMedia claims error in the trial court’s ruling the term “maintenance” to be
ambiguous. The lease agreement provided that Lineberry was responsible for maintenance outside
the building while InterMedia assumed the same responsibility for the inside of the building. The
specific question in this regard is whether the term “maintenance” included snow and ice removal.
Pursuant to the trial court’s determination that the term was ambiguous, the jury was allowed to
determine whether “maintenance” encompassed snow and ice removal.

        As an initial matter, we find no error in the trial court’s finding that the term “maintenance”
was ambiguous. We are no more sure what the term means within this context than was the trial
court. Moreover, having made such a determination, the issue was correctly submitted to the jury.
See Hendrix v. City of Maryville, 431 S.W.2d 292 (Tenn. Ct. App. 1968)(“When the contract is in
writing and its terms are indefinite and ambiguous, or if the evidence shows that more than one
inference can be drawn from the relationship, or if there is evidence of circumstances and relations
outside of the written agreement, the written contract alone cannot be determinative but a question
of fact arises which must be determined by the jury”).


         6
           Jeffrey Roarke, the InterMedia employee who salted the steps after the accident, testified that there was no
reasonab le way to enter the building witho ut encounte ring ice.

         7
           We recognize that this case was decided before the adoption of comparative fault in Tennessee. That fact does
not, however, make the q uoted passage any less applicab le. Fault, or lack thereof, is generally to be decided by the trier
of fact. The differences between contributory negligence and comparative fault are of no consequence to the outcome
in this case.

                                                            -6-
        The lease clearly did not speak to snow and ice removal. In the long relationship between
the parties, InterMedia had never requested that Lineberry perform this function. The evidence
showed that InterMedia had notice of the icy conditions while there is no evidence showing that
Lineberry had such notice. The jury’s determination that Lineberry was not responsible for removing
the ice which led to Mrs. Gibbs’ accident is clearly supported by material evidence and we will not
disturb that finding. See T.R.A.P 13(d).


                                        VI. Jury Instructions

        In its final issue, InterMedia claims that the trial court erred in instructing the jury that
ambiguities in a contract were to be construed against the drafter. This issue is without merit.
Having found the language in the lease to be ambiguous, the trial court complied with applicable law
in giving the instructions at issue. See Spiegel v. Thomas, Mann & Smith, 811 S.W.2d 528 (Tenn.
1991) (noting the general rule that ambiguities in contracts are construed against the drafter ) (citing
Hanover Ins. Co. v. Haney, 425 S.W.2d 590 (1968)).

                                             Conclusion

        For the reasons stated herein, we affirm the trial court decision. Costs of this appeal are
taxed to the Appellant, Robin Media Group, for which execution may issue if necessary.




                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




                                                  -7-
