                      IN THE SUPREME COURT OF TENNESSEE
                                  AT JACKSON

                GEORGIA CROSS, ET AL. v. CITY OF MEMPHIS

                       Appeal from the Circuit Court for Shelby County
                       No. 72984-6 T.D.   George H. Brown, Jr., Judge



                   No. W 1998-00091-SC-R11-CV — Decided June 20, 2000


This is an appeal from the Circuit Court for Shelby County which, following a bench trial, allocated
100% fault to the City of Memphis for an accident in which Georgia Cross was injured. On appeal,
the Court of Appeals applied a “clearly erroneous” standard of review and affirmed the judgment
of the trial court. We granted the City’s application for permission to appeal. We hold that, when
reviewing a trial court’s findings of fact, an appellate court must apply the de novo standard of
review contained in Tennessee Rule of Appellate Procedure 13(d). To the extent that it permits an
appellate court to apply a clearly erroneous standard of review, Coln v. City of Savannah, 966
S.W.2d 34 (Tenn. 1998), is clarified. In addition, the clearly erroneous language of Wright v. City
of Knoxville, 898 S.W.2d 177 (Tenn. 1995), is limited to jury cases. Having reviewed the record
and applying the relevant standard of review, we also hold that the trial court and the Court of
Appeals erred in allocating 100% fault to the City of Memphis. We conclude that Georgia Cross
should be allocated 20% fault for the accident in this case, that the City of Memphis should be
allocated 80% fault, and that the claims of both Georgia and Norman Cross should be reduced to
reflect the appropriate allocation of fault. Accordingly, we reverse the judgments of the trial court
and the Court of Appeals and remand to the trial court for further proceedings.

Tenn. R. App. P. 11; Judgment of the Court of Appeals is Reversed and Remanded

BARKER, J., delivered the opinion of the court, in which ANDERSON, C.J., and BIRCH and HOLDER ,
JJ., joined. DROWOTA , J., not participating.

Michael F. Rafferty, Jonathan E. Scharff, and Brett A. Hughes, Memphis, Tennessee, for the
appellant, City of Memphis.

Cannon F. Allen, Brian S. Faughnan, and Mark S. Norris, Memphis, Tennessee, for the appellees,
Georgia Cross, et al.

                                              OPINION
         The City of Memphis has owned and maintained the Poplar–White Station branch of the
Memphis and Shelby County Public Library since the branch opened. A ramp, which was installed
at the library in 1981, runs from the entrance in a slight downward slope to the street running in front
of the library. The City had curb cuts on either side of the base of the ramp, and each curb cut was
painted yellow. However, the degree of slope of the curb cuts did not comply with the City’s
construction code. On November 24, 1994, the City installed a handrail on the right side of the ramp
facing the building.

        Four days later, on November 28, 1994, Georgia Cross visited the library. Cross, who had
been taking her children to this library for four years, parked her vehicle beside the yellow painted
portion of the curb cut. Cross was carrying one of her four children on her right hip when she
noticed the handrail on the right. Cross testified that she assumed the handrail was installed to
prevent people from walking to the entrance of the library across a grassy area located to the right
of the handrail, and she did not use the handrail. Cross proceeded directly to the walk ramp which
she had walked up a number of times previously. Cross testified that as she started walking on the
ramp, she was looking at two of her children who had run ahead of her. As Cross stepped on to the
yellow curb cut with her right foot, the foot slid and her ankle gave and broke in three places. Cross
was hospitalized for one week after the accident, was bedridden for several more months, and
continues to suffer from traumatic arthritis.

      Following the accident, Cross filed suit for damages against the City pursuant to the
Tennessee Governmental Tort Liability Act. Norman Cross, Georgia Cross’s husband, also sought
damages for loss of consortium and loss of future consortium. After the accident but before the trial,
Norman Cross was diagnosed with amyotrophic lateral sclerosis, which carries a life expectancy of
between two and three years from diagnosis.

        At the conclusion of a bench trial, the court found that the City was negligent in creating the
conditions that caused Cross to slip and fall, and it allocated 100% fault to the City and 0% fault to
Georgia Cross. The court awarded $130,000.00 to Georgia Cross for her claim and $39,500.00 to
Norman Cross for loss of consortium. The court also found that, as a result of her injury, Georgia
Cross will be unable to care for her husband, and it awarded $78,800.00 to Norman Cross for future
loss of consortium.

        The City appealed arguing that Cross failed to use reasonable care under the circumstances,
was at fault for more than 51% of the accident, and was, therefore, barred from recovery. In
reviewing the trial court’s apportionment of fault, the Court of Appeals applied a clearly erroneous
standard with a presumption of correctness. The appellate court concluded that the trial court’s
apportionment was not clearly erroneous, and it affirmed the trial court’s decision. The City then
sought and this Court granted permission to appeal on the following issue: whether the Court of
Appeals erred in applying a clearly erroneous standard of review in the trial court’s allocation of
fault, rather than the de novo standard of review provided for in Tennessee Rule of Appellate
Procedure 13(d).

                                           DISCUSSION

       Tennessee Rule of Appellate Procedure 13(d) provides:

       Unless otherwise required by statute, review of findings of fact by the trial court in

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       civil actions shall be de novo upon the record of the trial court, accompanied by a
       presumption of the correctness of the finding, unless the preponderance of the
       evidence is otherwise.

        In Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn. 1995), this Court examined a trial
court’s allocation of fault in a bench trial. With regard to this issue, the Court stated:

       Although it is true that the trier of fact has considerable latitude in allocating
       percentages of fault to negligent parties, see, e.g., Martin v. Bussart, 292 Minn. 29,
       193 N.W.2d 134 (1971), appellate courts may alter those findings if they are clearly
       erroneous. Because this case was tried without a jury, our review of the issues of fact
       is de novo on the record of the trial court. However, we must presume that the trial
       court’s findings were correct unless the preponderance of the evidence is otherwise.
       Tenn. R. App. P. 13(d).

Id. at 181 (emphasis added). The Court’s analysis in Wright appears to contemplate two different
standards of review: clearly erroneous and de novo.

        Two years later, the Court of Appeals attempted to resolve this apparently contradictory
language. In Varner v. Perryman, 969 S.W.2d 410 (Tenn. Ct. App. 1997), the court distinguished
the portion of Wright that suggests a clearly erroneous standard would apply to allocations of fault
in a bench trial. The court observed that Wright cited to a jury case, Martin v. Bussart, in discussing
the clearly erroneous standard. See id. at 411. In non-jury cases, though, the court concluded that
the de novo standard of Rule 13(d) was controlling. See id.

        While it would appear that Rule 13(d) addresses and answers the issue now before this Court,
our opinion in Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), has created some confusion
with regard to the applicable standard of review. In Coln, this Court examined a trial court’s
allocation of fault. The Court cited Rule 13(d) but also quoted the “clearly erroneous” language
from Wright. The Court applied Rule 13(d), however, in affording the trial court’s findings a
presumption of correctness. See id. at 45.

         Accordingly, we clarify Coln to the extent that it appeared to permit an appellate court to
apply a clearly erroneous standard of review to a trial court’s findings of fact. Moreover, we limit
the clearly erroneous language in Wright to jury cases. We hold that the de novo standard of review
in Rule 13(d) is the applicable standard of appellate review for findings of fact made by a trial court.
Accordingly, we reverse the Court of Appeals with regard to the standard of review that is applied
to a trial court’s findings of fact.

        In the interest of judicial economy and because the standard of review is de novo, we will
also examine whether the trial court erred in allocating 100% fault to the City of Memphis and 0%
fault to Cross. Our review is de novo upon the record. Tenn. R. App. P. 13(d). We presume the
correctness of the trial court’s findings of fact which will be set aside only if the preponderance of
the evidence is otherwise. See id.

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        Having reviewed the record using that standard, we conclude that Georgia Cross is
responsible for some fault in this case. Cross had visited the library before and had walked up the
ramp a number of times after it had been installed in 1981. Thus, she was quite familiar with the
area. Cross testified that she saw the handrail when she arrived at the library and that she was aware
that the curb cut was painted bright yellow. She did not use the handrail, though, but carried a child
on her right hip. Moreover, as she stepped onto the curb cut, she did not look down at the painted
portion of the curb but was watching two of her children who had run ahead of her toward the library
door.

        Under these circumstances, we conclude that Cross should be allocated 20% fault for the
accident, and the City should be allocated 80% fault. Thus, the trial court’s judgment is modified
to reflect the appropriate allocation of fault. Moreover, because Norman Cross’s claim for loss of
consortium is derivative, his amount of recovery must also be reduced by the percentage of fault
allocated to his spouse. Cf. Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 108-09 (Tenn. 1996).

                                          CONCLUSION

        We hold that, when reviewing a trial court’s findings of fact, an appellate court must apply
the de novo standard of review contained in Tennessee Rule of Appellate Procedure 13(d). To the
extent that it permits an appellate court to apply a clearly erroneous standard of review, Coln v. City
of Savannah, 966 S.W.2d 34 (Tenn. 1998), is clarified. In addition, the clearly erroneous language
of Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn. 1995), is limited to jury cases. Accordingly,
we reverse the Court of Appeals with regard to the standard of review that is applied to a trial court’s
findings of fact.

        Having reviewed the record and applying the appropriate standard of review, we also hold
that the trial court and the Court of Appeals erred in allocating 100% fault to the City of Memphis.
We conclude that Georgia Cross should be allocated 20% fault for the accident in this case, that the
City of Memphis should be allocated 80% fault, and that the claims of both Georgia and Norman
Cross should be reduced to reflect the appropriate allocation of fault. We reverse the judgments of
the trial court and the Court of Appeals and remand to the trial court for further proceedings
consistent with this opinion.

        Costs of this appeal are taxed to the appellees, Georgia Cross, et al.




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