               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               October 25, 2016 Session

    VALERIE MILLER v. JACKSON-MADISON COUNTY GENERAL
                 HOSPITAL DISTRICT, ET AL.

                 Appeal from the Circuit Court for Madison County
                    No. C-13-132        Donald H. Allen, Judge
                     ___________________________________

              No. W2016-01170-COA-R3-CV – Filed December 8, 2016
                     ___________________________________

This is a case, brought pursuant to the Tennessee Governmental Tort Liability Act,
involving a plaintiff who was injured when she slipped and fell in a municipal hospital
owned and operated by the defendant. The plaintiff alleged that she suffered injuries
after slipping in water that was on the hospital‟s floor. Following a bench trial, the trial
court found that the defendant had no actual or constructive notice of the water and
entered judgment in its favor. The plaintiff appealed. We affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD P.J., W.S., and BRANDON O. GIBSON, J., joined.

Christopher L. Taylor, Memphis, Tennessee, for the appellant, Valerie Miller.

Patrick W. Rogers, Jackson, Tennessee, for the appellees, Jackson-Madison County
General Hospital District and West Tennessee Healthcare, Inc.


                                        OPINION

                      BACKGROUND AND PROCEDURAL HISTORY

       On May 10, 2012, Valerie Miller went to Jackson-Madison County General
Hospital to visit her brother, who was a patient. At some point during the visit, Ms.
Miller left her brother‟s room to find a nurse. When she did so, she allegedly slipped and
fell in water that was on the floor in the hallway. As a result of the fall, she allegedly
suffered injuries to her back and knee.

       On May 10, 2013, Ms. Miller filed a complaint in the Madison County Circuit
Court against Jackson-Madison County General Hospital District and West Tennessee
Healthcare, Inc. (together, the “Hospital”) pursuant to the Tennessee Governmental Tort
Liability Act (the “GTLA”).1 She alleged that the Hospital negligently caused her
injuries by failing to “maintain the hallway and protect Plaintiff from hidden and latent
defects of which the Defendant had knowledge.” She requested $25,000 in damages.
The Hospital filed an answer denying the material allegations of her complaint.

        Following a period of discovery, the case proceeded to a bench trial. 2 Ms. Miller
testified that she was injured when she slipped in water that was on the floor in the
hallway outside of her brother‟s room. She testified that she did not see anything on the
floor as she proceeded down the hallway but noticed a trail of water on the floor after she
fell. Although she testified that the trail of water led to a food cart against the wall in the
hallway, she stated that she did not inspect the food cart. She testified that she did not
know whether the water was leaking from the food cart or had been spilled near it.
Additionally, she testified that she did not know how long the water had been on the floor
or whether any of the Hospital‟s employees were aware of it prior to her fall. The
Hospital stipulated that its employees were primarily responsible for moving the food
cart, but no other evidence was presented on the issue of liability.

       The trial court entered a memorandum opinion and final order on May 3, 2016.
The trial court found the evidence insufficient to demonstrate that the Hospital or its
employees caused or had actual or constructive notice of the water on the floor prior to
Ms. Miller‟s fall. It therefore entered judgment in favor of the Hospital. Ms. Miller
timely filed a notice of appeal to this Court.

                                         ISSUE PRESENTED

Ms. Miller raises the following issue on appeal, restated from her appellate brief:

       1. Whether the trial court erred when it held that employees of Jackson-
          Madison County General Hospital were not negligent when the water

1
  The Jackson-Madison County General Hospital District and West Tennessee Healthcare, Inc. are
governmental entities responsible for operating Jackson-Madison County General Hospital and therefore
subject to the provisions of the GTLA.
2
   The GTLA provides that circuit courts “shall hear and decide such suits without the intervention of a
jury.” Tenn. Code Ann. § 29-20-307 (2012).
                                                 -2-
          that caused Ms. Miller to fall came from a food cart that was primarily
          in the control of its employees?

                                 STANDARD OF REVIEW

       When reviewing a trial court‟s findings following a bench trial, this Court reviews
the record de novo and presumes that the trial court‟s findings of fact are correct unless
the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). For the evidence to preponderate against
a trial court‟s finding of fact, it must support another finding of fact with greater
convincing effect. Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415,
425 (Tenn. 2005). We review the trial court‟s resolution of questions of law de novo
with no presumption of correctness. Stricklin v. Stricklin, 490 S.W.3d 8, 11 (Tenn. Ct.
App. 2015).

                                       DISCUSSION

       The doctrine of sovereign immunity provides that a suit may not be brought
against a governmental entity except to the extent that the governmental entity has
consented to be sued. Cruse v. City of Columbia, 922 S.W.2d 492, 495 (Tenn. 1996).
The doctrine is recognized by the Tennessee Constitution and has been a part of
Tennessee common law for more than a century. Id. (citing Tenn. Cons. Art. I, § 17; City
of Memphis v. Kimbrough, 59 Tenn. 133 (1873)). In 1973, the doctrine of sovereign
immunity was codified when the General Assembly enacted the GTLA. See Tenn. Code
Ann. §§ 29-20-101 to 408. The GTLA governs claims against counties, municipalities,
and other local governmental agencies, removing their immunity in limited and
enumerated instances for certain injuries. Tenn. Code Ann. §§ 29-20-202 to 205.

       There is no dispute in this case that the Hospital is a “governmental entity” as that
term is defined in the GTLA. Tenn. Code Ann. § 29-20-102(3)(A). It was therefore
amenable to suit pursuant to Tennessee Code Annotated section 29-20-204, which
provides:

       (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[.]
                                           -3-
       That section essentially codifies the common law obligations of owners and
occupiers of property embodied in premises liability law. Lindgren v. City of Johnson
City, 88 S.W.3d 581, 584 (Tenn. Ct. App. 2002). Generally, the common law imposes on
such persons a duty to exercise ordinary care and diligence in maintaining the premises in
a safe condition. Cornell v. State, 118 S.W.3d 374, 378 (Tenn. Ct. App. 2003). This
includes an affirmative duty to protect against dangers of which the owner or occupier
knows or with reasonable care and diligence might have discovered. Id.

        To prevail in a premises liability case against a defendant governmental entity, the
plaintiff must first demonstrate that there is “a dangerous or defective condition of any
public building . . . owned and controlled by such governmental entity.” Tenn. Code
Ann. § 29-20-204(a). The determination of whether a particular condition is dangerous
or defective is a question of fact. Cornell, 118 S.W.3d at 378. In making that
determination, the fact-finder should consider whether the condition created a danger
from which injury might be reasonably anticipated. See Helton v. Knox Cnty., Tenn., 922
S.W.2d 877, 883 (Tenn. 1996). The mere fact that an injury is “possible” does not make
the condition dangerous. Id. (“Probability, not possibility, governs; that it is „possible‟ . .
. does not make it dangerous.”).

       Once the existence of a dangerous condition has been established, the plaintiff
must demonstrate that the governmental entity had notice of the condition. Tenn. Code
Ann. § 29-20-204(b). This may be accomplished in one of two ways. First, the plaintiff
may show that the condition was caused or created by the defendant or its agent, thereby
imputing notice to the defendant. See Blair v. West Town Mall, 130 S.W.3d 761, 764
(Tenn. 2004); Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989). Second, if
the condition was created by someone other than the defendant or its agent, the plaintiff
may show that the defendant had actual or constructive notice of the condition prior to
the accident. Blair, 130 S.W.3d at 764; Sanders, 783 S.W.2d at 951-52. Actual notice is
defined as “knowledge of facts and circumstances sufficiently pertinent in character to
enable reasonably cautious and prudent persons to investigate and ascertain as to the
ultimate facts.” Longmire v. The Kroger Co., 134 S.W.3d 186, 189 (Tenn. Ct. App.
2003) (quoting Kirby v. Macon Co., 892 S.W.2d 403, 409 (Tenn. 1994)). Constructive
notice is “information or knowledge of a fact imputed by law to a person (although he
may not actually have it) because he could have discovered the fact by proper diligence,
and his situation was such as to cast upon him the duty of inquiring into it.” Parker v.
Holiday Hosp. Franchising, Inc., 446 S.W.3d 341, 351 (Tenn. 2014). Constructive
notice may be established through evidence that the condition existed for such a length of
time that the defendant, in the exercise of reasonable care, should have become aware of
it. Blair, 130 S.W.3d at 764.


                                             -4-
         Ms. Miller testified that she was injured after slipping in water that was on the
floor in the hallway of the Hospital. The Hospital did not present any evidence to refute
Ms. Miller‟s testimony that there was water on the floor when she fell or that the water
caused her to fall. It is common knowledge that water is not ordinarily found on the floor
in hospital hallways. The Hospital does not argue otherwise.

       However, the evidence does not establish that the Hospital caused or had actual or
constructive notice of a dangerous condition.3 Apart from the Hospital‟s stipulation that
its employees were primarily responsible for moving the food cart, Ms. Miller‟s
testimony was the only evidence presented to establish the Hospital‟s liability. Ms.
Miller‟s testimony does not establish that the Hospital or its employees caused the water
to be on the floor:

        [Q:] You don‟t know if any employee of the hospital had done anything to
             cause that leak; do you?

        [A:] No; I do not.

        [Q:] And you don‟t know if they failed to do anything that caused the
             leak; do you?

        [A:] (The witness shook her head.)

        [Q:] As we sit here today, you don‟t know what caused the leak or the
             water to come from the cart; is that right?

        [A:] No; I don‟t. Hum-um.

               ...

        [Q:] You don‟t know if some visitor might have bumped into the cart and
             caused something to spill from the cart; do you?

        [A:] No.

        [Q:] And you don‟t know if someone who was passing by that cart may
             have spilled some liquid right there by the cart; do you?

3
 The trial court did not make a finding that the water on the floor was a dangerous or defective condition.
Rather, it moved directly to find that the Hospital did not have actual or constructive notice. Ms. Miller
does not raise this as an issue on appeal, and we therefore decline to address it.
                                                   -5-
      [A:] No[.]

      [Q:] But as we sit here today, you don‟t know how that water --

      [A:] No.

      [Q:] -- got in the floor; do you?

      [A:] Hum-um; no, sir.

Ms. Miller‟s testimony does not establish that the Hospital or its employees had actual
notice of the water:

      [Q:] Do you know if any employee of the hospital knew that there was
           liquid in the floor before you fell?

      [A:] No.

      [Q:] Do you know if any person knew that there was liquid in the floor
           before you fell?

      [A:] No.

      [Q:] Do you know if anyone had reported that there was liquid in the floor
           before you fell?

      [A:] No; they all seemed surprised, you know.

      [Q:] And you don‟t know if anybody knew about that liquid being in the
           floor before you fell; do you?

      [A:] No, sir.

Likewise, Ms. Miller‟s testimony does not establish that constructive notice of the water
should be imputed to the Hospital or its employees:

      [Q:] And I think you told me when I took your deposition, you don‟t know
           for sure if anybody actually witnessed your fall; is that right?

      [A:] Correct.

                                          -6-
      ...

[Q:] And when you fell, you didn‟t see anybody around that cart --

[A:] No, sir.

[Q:] -- is that correct? You don‟t know how long that food cart had been
     in that location?

[A:] No, sir.

[Q:] I think you also said that the liquid that you slipped in, there was a
     trail of that to the cart --

[A:] Um-hum.

[Q:] -- is that correct?

[A:] Yes, sir

      ...

[Q:] You don‟t know if liquid had ever leaked from that cart previously;
     do you?

[A:] No.

[Q:] And you don‟t know if any liquid had ever leaked from any food cart
     at the hospital prior to that date.

[A:] No.

      ...

[Q:] You don‟t know if anyone had previously reported any leak from this
     cart; do you?

[A:] No, sir.

[Q:] Or from any cart -- any food cart at the hospital; right?

                                    -7-
       [A:] No, sir.

             ...

       [Q:] Do you know how long the liquid had been in the floor?

       [A:] No, sir.

        Though not cited specifically in her appellate brief, it appears that Ms. Miller
attempts to cure the shortcomings of her evidence by relying on the doctrine of res ipsa
loquitur. The doctrine of res ipsa loquitur permits a fact-finder to infer negligence from
the circumstances surrounding an injury. Underwood v. HCA Health Servs. of Tenn.,
Inc., 892 S.W.2d 423, 426 (Tenn. 1994). Rather than prove specific acts of negligence, a
plaintiff relying on the doctrine of res ipsa loquitur must present evidence from which the
fact-finder can conclude that the injury was caused, more probably than not, by the
defendant‟s negligence. Id. at 426-27. Thus, it is based on everyday experience and
requires nothing more than the common sense appraisal of the strength of the plaintiff‟s
circumstantial evidence. Id. at 426. However, the strength of the plaintiff‟s evidence will
vary with the facts of each case, and the strength of the inference of the defendant‟s
negligence will likewise vary from reasonable probability to practical certainty. Id. at
427. As such, the doctrine of res ipsa loquitur does not apply when the plaintiff‟s injury
could reasonably have occurred without the defendant‟s negligence. Id. The evidence
supporting a res ipsa loquitur case must be strong enough to avoid requiring the fact-
finder to make a leap of faith to find in favor of the plaintiff. Burton v. Warren Farmers
Coop., 129 S.W.3d 513, 527 (Tenn. Ct. App. 2002).

        A plaintiff relying on the doctrine of res ipsa loquitur must demonstrate (1) what
object or condition caused the injury, (2) that the object or condition that caused the
injury is of a kind that does not ordinarily occur in the absence of negligence, and (3) that
the instrumentality causing the injury was under the defendant‟s exclusive control when
the injury occurred. Id. at 524. Once the plaintiff has presented evidence sufficient to
establish an inference of negligence, the defendant may rebut the evidence by proving (1)
it exercised reasonable care under the circumstances, (2) the plaintiff‟s injury was caused
by something over which it had no control, (3) the plaintiff‟s injury was the sort of injury
that commonly occurs without anyone‟s negligence, or (4) that the plaintiff‟s injury could
not have been avoided even with reasonable care. Id. at 527. It is then the fact-finder‟s
job to weigh the evidence and determine whether the defendant has successfully rebutted
the inference of negligence arising from the plaintiff‟s evidence. Id. at 527-28.

      Ms. Miller cites Benson v. H.G. Hill, Inc., 699 S.W.2d 560 (Tenn. Ct. App. 1985),
in support of her contention that the evidence presented was sufficient to create a
                                            -8-
reasonable inference that the Hospital‟s negligence caused her injury. In Benson, the
plaintiff suffered an injury when she slipped and fell on wet floor wax in the defendant‟s
grocery store. Id. at 561. The trial court granted a directed verdict in favor of the
defendant grocery store, concluding that the plaintiff‟s evidence failed to establish that
the grocery store caused or had notice of the dangerous condition. Id. at 561-62. This
Court reversed on appeal, holding that a reasonable jury could infer that the grocery store
caused the dangerous condition because it is common knowledge that grocery store
employees regularly apply wet wax to the floors of grocery stores for maintenance
purposes and because there was no other reasonable explanation for the presence of the
wet wax on a grocery store floor. Id. at 563-64.

        This case is distinguishable from Benson in several respects. Most notably,
Benson involved the grant of a directed verdict to the defendant. A directed verdict is
only appropriate when the court determines that the evidence is susceptible to only one
conclusion. Brown v. Crown Equip. Corp., 181 S.W.3d 268, 281 (Tenn. 2005). In ruling
on a motion for directed verdict, the court does not weigh the evidence or evaluate the
credibility of the witnesses. Burton, 129 S.W.3d at 520. Rather, it must view the
evidence in the light most favorable to the non-moving party, give the non-moving party
the benefit of all reasonable inferences, and disregard all evidence contrary to the non-
moving party‟s position. Id. Conversely, when the trial court weighs the evidence and
determines the credibility of the witnesses in a bench trial, the prevailing party is the one
in whose favor the evidentiary scale tips, no matter how slightly. See C-Wood Lumber
Co., Inc. v. Wayne Cnty. Bank, 233 S.W.3d 263, 272 (Tenn. Ct. App. 2007). Because this
case was resolved after a bench trial rather than on a motion for a directed verdict, a less
stringent standard of review applies. As we explained above, we are bound to leave the
trial court‟s findings of fact undisturbed unless the aggregate weight of the evidence
demonstrates that a finding of fact other than the one found by the trial court is more
probably true. Nashville Ford Tractor, Inc., 194 S.W.3d at 425.

       This case is also factually distinguishable from Benson. In Benson, this Court held
the grocery store‟s negligence could reasonably be inferred because it is common
knowledge that grocery store employees regularly apply wet wax to their floors and
because there was no other reasonable explanation for the presence of the wet wax on the
floor. Benson, 699 S.W.2d at 563-64. The same cannot be said of the water on the
Hospital‟s floor in this case. While it is possible that the water was leaking from the food
cart as a result of the Hospital‟s negligence, the evidence presented does not foreclose
other reasonable explanations for the water‟s presence on the floor. As Ms. Miller
acknowledged in her testimony, there are at least two plausible explanations for the
water‟s presence apart from the Hospital‟s negligence. Another visitor could have
bumped the food cart and caused water to spill from the food cart. It is also possible that
a visitor spilled water near the food cart. Because the injury could reasonably have
                                            -9-
occurred without the Hospital‟s negligence, Ms. Miller‟s evidence was not sufficient to
create a reasonable inference that her injury was caused, more probably than not, by the
Hospital‟s negligence.

                                      CONCLUSION

        For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the appellant, Valerie Miller, and her surety, for which execution may
issue if necessary.



                                                   _________________________________
                                                   ARNOLD B. GOLDIN, JUDGE




                                          - 10 -
