                                                                                             01/26/2018
            IN THE COURT OF APPEALS OF TENNESSEE
                       AT KNOXVILLE
                            October 18, 2017 Session

  LINDA WIMMER V. CHATTANOOOGA-HAMILTON COUNTY
  HOSPITAL AUTHORITY D/B/A/ ERLANGER HEALTH SYSTEM

              Appeal from the Circuit Court for Hamilton County
                   No. 14C507 W. Neil Thomas, III, Judge
                  ___________________________________

                        No. E2017-00352-COA-R3-CV
                    ___________________________________

John W. McClarty, J., dissenting.

       The majority holds that Erlanger was immune from suit pursuant to Tennessee
Code Annotated section 29-20-101, et seq., the Tennessee Governmental Tort Liability
Act (“GTLA”); that Ms. Wimmer failed to prove that said immunity was removed; and,
in the alternative, that she failed to prove causation. I think the hospital is liable for this
injury and the plaintiff should prevail.

      Erlanger’s immunity under GTLA could be removed pursuant to section 29-20-
204, which provides:

              29-20-204. Removal of immunity for injury from
              dangerous structures – Exception – Notice required.

              (a) Immunity from suit of a governmental entity is removed
              for any injury caused by the dangerous or defective condition
              of any public building, structure, dam, reservoir or other
              public improvement owned and controlled by such
              governmental entity.
              (b) Immunity is not removed for latent defective conditions,
              nor shall this section apply unless constructive and/or actual
              notice to the governmental entity of such condition be alleged
              and proved in addition to the procedural notice required by §
              29-20-302 [repealed].

Tenn. Code Ann. § 29-20-204 (2012).



                                              1
       In the case before us, I believe the door should be considered a dangerous
condition of which Erlanger had notice. Rodney J. Patton, who formerly worked at
Erlanger for the hospital police, testified that during his employment with defendant he
was routinely familiar with this particular door and others similar to it. The majority
opinion notes his testimony as follows:

             When asked specifically about the Door, Mr. Patton stated:

             “That is an odd door. There’s a couple of doors in the
             medical mall that you can be standing there and someone may
             push that door out and you may not be - - they may not know
             someone is standing on the other side. There’s a couple of
             doors like that.”

             Mr. Patton was asked if he ever made reports about doors
             hitting people while at Erlanger, and he stated: “Routinely, if
             an individual got hit by a door, that is something that would
             have went up to the A1 house supervisors at Erlanger.”

During the testimony of James Howard Robinson, Jr., a structural and forensic engineer,
he “agreed when asked that it was possible for [the door] to be a dangerous condition
even if it were code compliant.” As was further noted in the majority opinion, no
warning sign was provided that the door might be pushed out:

             Plaintiff testified that there was no sign telling her not to
             stand where she was standing, and that she did not notice a
             window in the Door. . . . She stated . . . that she did not see
             the Door until after she was hit. . . .

             Plaintiff was asked if during her past visits to Erlanger she
             had seen other people standing in the area where she had been
             standing when the Accident occurred, and she stated: “Yes.
             People stood there.” Plaintiff stated:

             It was typical to wait there, not only myself, but there would
             be other people waiting at times. It wasn’t real crowded up
             together, but there would be - - one or two other people would
             be standing here, waiting for their rides, because our van
             wasn’t the only one that came up there to pick people up.

              Plaintiff was asked why she didn’t sit in an available chair
             away from the Door, and she stated:


                                           2
             I could, but I couldn’t have seen [the van driver] until he
             pulled up right in front of the doors, which upset him, because
             he - - people start blowing their horns at him and cursing him
             and stuff like that. . . . He couldn’t leave the van. He’d
             expect you to see him, and that’s why I was standing. . . .
             And he was coming from the left direction. So I had to see
             from the left up the driveway, to see him turning into the
             driveway. And I would start out the door, because he had to
             put the lift down to put me in the van. . . .

Michael Roy Baker, the senior director of facilities for Erlanger, explained that seating
where the accident occurred is some distance from the outside door. He noted that the
chairs face toward one another, not toward the outside doors, and that the “common
waiting areas” are not “designed to see out the door.”

       As related by the majority, further expert testimony by Clarkson Lee Mason, a
professional engineer and architectural consultant, revealed the following regarding the
dangerous condition posed by the fire door at issue:

             [A]s you learn more about what occurred, you can see why
             things could become hazardous, if certain sets of
             circumstances were to prevail approximately at the same
             time.

             When asked if he had an opinion about whether the Door
             should have had a sign, Mr. Mason stated:

             Yes, I do have an opinion. And I think it’s appropriate, very
             appropriate for any exit door to have a warning to other
             people who may be casually waiting to - - waiting to walk by
             it or whatever . . . .

             With regard to the necessity for a sign, Mr. Mason further
             stated:

             Well, from my engineering point of view and, I’d like to say,
             common sense based on my engineering and experience in
             the business having to do with buildings, you kind of would
             expect there to be some sort of a warning sign there so that
             couldn’t recur, that action wouldn’t recur.

             Mr. Mason was asked if someone standing in front of the
             Door with no sign would know it was an exit door, and he

                                           3
             stated: “Only by past experience, having been there often
             enough to realize that. But there’s not distinguishing marks.”
             Mr. Mason stated that in his opinion the cost of such signs is
             minimal. According to Mr. Mason, there is no way for
             people to know in the absence of a sign that the Door might
             open into them. . . .

             When asked if the Door not having a sign was a problem, Mr.
             Mason stated: “Well, the problem was not so much the sign.
             The problem was there wasn’t any way for her to be seen or
             for her to see what was happening, and she did get hit and get
             hurt.” He was asked if he had an opinion about whether there
             should be glass in the Door, and he testified:

             . . . [Y]ou need to be able to let whoever is on the inside know
             there is a falling hazard on the inside. And vice versa;
             someone on the outside knows or can perceive someone
             coming through that door and hit them. That may not stop it
             from happening, but they’ll at least have some idea that it’s
             getting ready to happen . . . .

As noted by Mr. Mason, “common sense and experience” revealed the door to be a
dangerous condition of which Erlanger had notice.

       Erlanger’s immunity under the GTLA also could have been removed pursuant to
either Tennessee Code Annotated section 29-20-205. The pertinent part of section 29-20-
205 provides that immunity “is removed for injury proximately caused by a negligent act
or omission of any employee within the scope of his employment . . . ,” except in
specific circumstances not applicable to the instant case. Tenn. Code Ann. § 29-20-205
(2012).

      According to plaintiff, the person who opened the door and knocked her down was
an Erlanger employee because he was wearing scrubs. Ms. Wimmer described the
accident as follows:

             I was knocked about halfway across the foyer there and
             finally fell on my back. And when I fell, I couldn’t feel
             anything from my neck down. I was afraid that I’d been
             paralyzed, broken my back or something.

             And the man was right behind me, and he had on scrubs and
             he had on the bandana. And I assumed he was an employee


                                            4
              of the hospital since he was dressed in scrubs and they were
              blue.

              He bent over and [sic] me and he said, “Are you all right?”

              I said, “No. I can’t feel anything from my neck down.”

              He says, “I can’t stay with you, but I’ll go get help.”

              And he ran off, going in the direction down the hall. . . . And
              I lay there for about 15 minutes more and he came running
              back. He said, “I couldn’t find anybody. I’ll be back.”

              And he ran off again. In a little while, a lady came down.
              And he said, “I’ll get someone to stay with you.”

              A lady came down. I assume she was an office worker. And
              she said, “I’m going to stay with you until the ambulance
              comes.” So she did. She stayed there and talked to me till
              the ambulance came.

The trial court’s findings noted as follows:

              The events of the accident are shown on a video . . . and
              depicted an open area in front of the facility with two sets of
              sliding doors. Mrs. Wimmer was waiting on the inside of the
              inside doors with a door from a stairwell to her right. That
              door opened outward into the lobby area. While waiting, she
              was hit by the door and knocked down when a man in scrubs
              opened the door in somewhat of a hurry. . . . It was
              undisputed that there was no sign on the door; nor was there
              any aperture in the door through which someone on either
              side of the door could see.

      In my view, Ms. Wimmer proved that Erlanger’s immunity was removed under
the GTLA.

       With regard to causation, the trial court held:

              [T]he question then becomes whether there has been evidence
              of causation, namely, whether the accident would have been
              avoided even with the existence of a sign or a glass window.
              The testimony of Mr. Mason was only that the door opened in

                                               5
             such a way as to not cause a warning to the Plaintiff, not that
             the warning would have made it more likely than not that the
             accident would not have occurred. . . .

       Business proprietors are not insurers of their patrons’ safety. See, e.g., Blair v.
West Town Mall, 130 S.W.3d 761, 764 (Tenn.2004). They are, however, expected to
maintain the premises in a reasonably safe condition by removing or repairing dangerous
conditions or by helping customers avoid injury by warning them of such dangerous
conditions. See Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn.1996).

       I would find that the evidence preponderates against the findings made by the trial
court. The accident occurred when the Erlanger employee hurriedly pushed open the
door that constituted a dangerous condition and knocked the plaintiff down. In my view,
the evidence supports the conclusion that the accident would have been avoided with the
existence of a warning sign or a glass window. Thus, the trial court erred in reaching the
conclusion that plaintiff failed to prove causation. Accordingly, I respectfully dissent.




                                            6
