                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               September 27, 2011 Session

           BENJAMIN INDOCCIO v. M&A BUILDERS, LLC, ET AL.

             Direct Appeal from the Circuit Court for Rutherford County
                      No. 56910    Robert E. Corlew, III, Judge


              No. M2010-02624-COA-R3-CV - Filed November 14, 2011


This appeal arises from injuries Plaintiff sustained after falling down a staircase while
working on the construction of a home. Plaintiff filed a negligence action against the general
contractor and the subcontractor responsible for the construction of the custom staircase. The
matter was tried before a jury, and the jury returned a verdict finding Plaintiff fifty percent
at fault, the subcontractor thirty-five percent at fault, and the general contractor fifteen
percent at fault. After his motion for new trial was denied, Plaintiff filed this appeal.
Plaintiff asserts that the trial court erred by excluding evidence that the subcontractor’s
employees used marijuana while working on the construction of the staircase, and erred by
excluding evidence of misdemeanor convictions and probation violations of one of the
subcontractor’s employees. Plaintiff also asserts that the trial court erroneously instructed
the jury regarding notice, negligence, and foreseeability. After thoroughly reviewing the
record, we find that the trial court did not abuse its discretion by excluding the evidence of
alleged marijuana use or the evidence of misdemeanor convictions and probation violations.
Similarly, we find that the jury instructions on notice, negligence, and foreseeability were
proper. Accordingly, we affirm the judgment of the trial court.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

D. Russell Thomas and Melinda K. Brown, Murfreesboro, Tennessee, for the appellant,
Benjamin Indoccio.

James R. Tomkins, Nashville, Tennessee, for the appellee, Estate of David Meeks.
                                           OPINION

                          I. Background and Procedural History

        Benjamin Indoccio (“Mr. Indoccio”), a subcontractor specializing in tile work, worked
for M&A Builders, LLC (“M&A Builders”) on the construction of a home in Rutherford
County, Tennessee. David Meeks d/b/a D M Trim (“Mr. Meeks”), a subcontractor
specializing in trim work, also worked for M&A Builders on the construction of the home.
On September 15, 2007, while the staircase of the home was under construction, Mr.
Indoccio went upstairs to check on the progress of the tile work in one of the rooms. When
Mr. Indoccio descended the staircase to return working downstairs, one of the boards that
made up the temporary tread of a stair slipped out from under him causing him to fall and
seriously injure his foot. At the time of the fall, Mr. Meeks’ employees were in the process
of installing custom treads on the staircase.

       On April 3, 2008, Mr. Indoccio filed a complaint in Rutherford County Circuit Court
alleging negligence on the part of M&A Builders and Mr. Meeks.1 Mr. Indoccio alleged that
he fell and sustained serious physical injuries as a result of the unreasonably dangerous
condition of the staircase. Mr. Indoccio further alleged that the condition of the staircase was
unreasonably dangerous because the temporary treads used by Mr. Meeks’ employees were
made of inappropriate material, were not adequately affixed to the staircase, there were no
proper warnings of these conditions, and the workplace was dirty and lacked adequate
lighting.

        Before trial, Mr. Indoccio sought to introduce evidence that Mr. Meeks regularly used
marijuana, and that his employees, including his son Timothy Meeks, used marijuana while
working on the staircase of the home where Mr. Indoccio fell. Mr. Indoccio also offered
evidence of misdemeanor convictions and probation violations of Timothy Meeks, which he
alleged were admissible as impeachment evidence. Further, Mr. Indoccio sought to introduce
the testimony of a general contractor that marijuana use while working at a construction site
increased the risk of workplace injuries. After conducting a hearing, the trial court
determined that all evidence regarding the alleged use of marijuana was not relevant, and
therefore excluded the evidence. The trial court emphasized that, even if the evidence was
probative, it would be substantially outweighed by its unfairly prejudicial effect.
Additionally, the trial court excluded all evidence of Timothy Meeks’ misdemeanor
convictions and probation violations because they were not proper impeachment evidence.



       1
        Mr. Meeks passed away during the pendency of this action and his estate was substituted as a
defendant.

                                                -2-
        In August 2010, the case was tried before a jury. Before the conclusion of the trial,
the trial court discussed and prepared the jury instructions with the parties. The trial court
agreed to instruct the jury according to Mr. Meeks’ requested instructions regarding notice,
negligence, and foreseeability. Mr. Indoccio objected to the trial court’s use of the requested
instructions.

        After receiving the trial court’s instructions, the jury returned a verdict finding Mr.
Indoccio fifty percent at fault, Mr. Meeks thirty-five percent at fault, and M&A Builders
fifteen percent at fault. Accordingly, on August 26, 2010, the trial court entered an order of
judgment dismissing all of Mr. Indoccio’s claims against Mr. Meeks and M&A Builders.
Mr. Indoccio filed a motion for new trial based on, inter alia, the trial court’s exclusion of
evidence regarding marijuana usage, Timothy Meeks’ misdemeanor convictions and
probation violations, and the trial court’s use of Mr. Meeks’ requested jury instructions. On
November 15, 2010, the trial court denied Mr. Indoccio’s motion for new trial. Mr. Indoccio
timely filed a notice of appeal.2

                                           II. Issues Presented

       Mr. Indoccio raises the following issues, as we perceive them, for our review:

       (1)        Whether the trial court erred by excluding all evidence of the alleged
                  marijuana use of Mr. Meeks and his employees,

       (2)        Whether the trial court erred by excluding evidence of Timothy Meeks’
                  misdemeanor convictions and probation violations, and

       (3)        Whether the trial court erroneously instructed the jury regarding notice,
                  negligence, and foreseeability?

                                         III. Law and Analysis

                                       A. Exclusion of Evidence

       Mr. Indoccio first argues that the trial court erred by excluding all evidence of the
alleged marijuana use of Mr. Meeks and his employees.3 We review a trial court’s decision


       2
           M&A Builders did not file a brief or participate in oral argument in this appeal.
       3
           Mr. Indoccio attached a variety of articles and studies to his motion for new trial that discuss the
                                                                                                 (continued...)

                                                      -3-
to admit or exclude evidence for an abuse of discretion. Biscan v. Brown, 160 S.W.3d 462,
468 (Tenn. 2005) (citing Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn.
2004)). A trial court abuses its discretion “only when it ‘applie[s] an incorrect legal standard,
or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the
party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). This standard does not permit an appellate court
to substitute its judgment for that of the trial court. Id. (citing Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998)). Rather, the abuse of discretion standard “‘reflects an
awareness that the decision being reviewed involved a choice among several acceptable
alternatives,’ and thus ‘envisions a less rigorous review of the lower court's decision and a
decreased likelihood that the decision will be reversed on appeal.’” Henderson v. SAIA, Inc.,
318 S.W.3d 328, 335 (Tenn. 2010) (quoting Lee Medical, Inc. v. Beecher, 312 S.W.3d 515,
524 (Tenn. 2010)).

        The trial court excluded all evidence regarding the alleged use of marijuana because
it was not probative of any issue the jury was asked to determine, and therefore was not
relevant. Relevant evidence is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Tenn. R. Evid. 401. “In other
words, evidence is relevant if it helps the trier of fact resolve an issue of fact.” Neil P.
Cohen, et al., Tennessee Law of Evidence § 4.01[4], at 4–9 (5th ed. 2005). “Evidence which
is not relevant is not admissible.” Tenn. R. Evid. 402. Relevant evidence, however, “may
be excluded if 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.” Tenn. R. Evid. 403.4


        3
          (...continued)
effects of marijuana usage. Mr. Indoccio asked the trial court to consider these studies when examining the
credibility and memory of Mr. Meeks and Timothy Meeks. On appeal, Mr. Indoccio asks this Court to take
judicial notice of this information.
         “Simply attaching a document to an appellate filing will not serve to place it in the record on appeal,
especially when it was not part of the record of the trial court proceedings.” In re Bernard T., 319 S.W.3d
586, 591 n. 3 (Tenn. 2010) (citing UT Med. Group, Inc. v. Vogt, 235 S.W.3d 110, 122 (Tenn. 2007); Vintage
Health Res., Inc. v. Guiangan, 309 S.W.3d 448, 460 n. 13 (Tenn. Ct. App. 2009)). “While [appellate courts]
may take judicial notice of evidentiary matters in proper circumstances, we customarily decline to take
judicial notice of materials that are not properly included in the record on appeal.” Id. (citations omitted).
The record does not contain a transcript of the proceedings before the trial court on Mr. Indoccio’s motion
for new trial. Moreover, there is no indication in the record that this information was ever considered by the
trial court or included in the record at trial. Consequently, we decline to take judicial notice of this material.
        4
            Rule 403 requires trial courts to conduct a two-step balancing test:
                                                                                                   (continued...)

                                                       -4-
        The evidence of alleged marijuana use included the testimony of Timothy Meeks that
his father, Mr. Meeks, regularly used marijuana, and the testimony of Mr. Indoccio and his
ex-wife that they observed Mr. Meeks’ employees using marijuana and under the influence
of marijuana while working. Mr. Meeks’ employees denied these allegations. Further, Mr.
Indoccio sought to offer the testimony of a general contractor that marijuana use while
working at a construction site increased the likelihood of injuries. At trial, however, the
condition of the staircase was largely undisputed. How or why the staircase was in that
condition when Mr. Indoccio fell was not at issue. Therefore, we agree with the trial court’s
finding that any alleged marijuana use did not make any issue before the jury more or less
probable. Even if the evidence offered by Mr. Indoccio was considered probative, we agree
with the trial court that any probative value of the evidence would be substantially
outweighed by its unfairly prejudicial effect. Evidence of this nature would undoubtedly
pose a great risk of allowing the jury to decide the case on purely emotional grounds based
on their general contempt of drug use. See Neil P. Cohen, et al., Tennessee Law of Evidence
§ 4.03[6], at 4–64 (5th ed. 2005) (“[T]he term ‘unfair prejudice . . . means an undue tendency
to suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.’”) (citations omitted). Accordingly, we find no abuse of discretion in the trial court’s
decision to exclude all evidence of the alleged marijuana use.

       Mr. Indoccio next argues that the trial court erred by excluding evidence of Timothy
Meeks’ misdemeanor convictions and probation violations. Evidence of a prior conviction
may be admissible to impeach a witness’s credibility if the crime was a felony or the crime
involved dishonesty or false statements. Tenn. R. Evid. 609(a)(2). On the other hand,
specific instances of conduct that are not criminal convictions may be inquired into on cross-
examination if the conduct is probative of the witness’s character for truthfulness or
untruthfulness. Tenn. R. Evid. 608(b). Unlike criminal convictions under Rule 609, specific
instances of conduct under Rule 608 may not be proved by extrinsic evidence. Although
Timothy Meeks admitted in his deposition that he used marijuana in the past while working
on construction jobs, he stated that he did not use marijuana while working on the home
where Mr. Indoccio fell because he was on probation at that time. In order to impeach
Timothy Meeks’ testimony, Mr. Indoccio offered evidence that while Timothy Meeks was


       4
        (...continued)
       The trial court must first balance the probative value of the evidence sought to be excluded
       against the countervailing factors. After the court has engaged in the balancing analysis, it
       may then exercise its discretion to determine whether the evidence should be excluded if the
       prejudice outweighs the probative value of the evidence.

White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (1999) (citation omitted). “[The] trial court should not
exclude evidence under Tenn. R. Evid. 403 when the balance between the probative worth of the evidence
and the countervailing factors is fairly debatable.” Id. (citation omitted).

                                                   -5-
on probation for misdemeanor convictions, he was charged with violation of his probation
twice for failing a drug test. The trial court excluded this evidence on the grounds that
misdemeanor convictions are generally not admissible for impeachment purposes, and none
of the probation violations involved conduct probative of Timothy Meeks’ character for
truthfulness.

        After reviewing the record, we agree with the trial court’s decision to exclude
Timothy Meeks’ misdemeanor convictions and probation violations. The misdemeanor
convictions offered by Mr. Indoccio included drug possession, driving under the influence,
and driving on a suspended license. None of Timothy Meeks’ misdemeanor convictions
involved dishonesty or false statements, and therefore they were inadmissible under Rule
609. Moreover, Timothy Meeks’ probation violations for failing a drug test were not
probative of his character for truthfulness. See Hatchett v. State, 552 S.W.2d 414, 415 (Tenn.
Crim. App. 1977) (“The specific act of simple possession or use of drugs is not such that can
be lawfully asked a defendant on cross-examination for impeachment purposes. . . . There
is no connection between the use or possession of marijuana and the veracity of a witness.”)
(citations omitted). Hence, Timothy Meeks’ probation violations were inadmissible under
Rule 608. Therefore, we find no abuse of discretion in the trial court’s decision to exclude
evidence of Timothy Meeks’ misdemeanor convictions and probation violations.

                                     B. Jury Instructions

       Finally, Mr. Indoccio argues that the trial court erroneously instructed the jury
regarding notice, negligence, and foreseeability, because the instructions failed to consider
the facts of the case, resulted in an incorrect statement of the law, and increased his burden
of proof. We review a jury charge in its entirety to determine whether the trial court
committed reversible error. Goff v. Elmo Greer & Sons Const. Co., Inc., 297 S.W.3d 175,
196-97 (Tenn. 2009) (citing Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446
(Tenn. 1992)). Although jury instructions must be correct and fair as a whole, they do not
have to be perfect in every detail. Goodale v. Langenberg, 243 S.W.3d 575, 584 (Tenn. Ct.
App. 2007) (citing Wielgus v. Dover Indus., 39 S.W.3d 124, 131 (Tenn. Ct. App. 2001)).
Furthermore, “[t]he charge will not be invalidated as long as it fairly defines the legal issues
involved in the case and does not mislead the jury.” Goff, 297 S.W.3d at 197 (quoting Otis,
850 S.W.2d at 446).

        Mr. Indoccio first contends that the trial court’s instruction to the jury regarding notice
failed to consider the facts of the case and resulted in an incorrect statement of law. The
portion of the charge at issue provides:

       One who is in control of premises is under a duty to use ordinary care.

                                                -6-
       Ordinary care is the care that ordinarily careful persons would use to avoid
       injury to themselves or others under the same or similar circumstances. This
       does not include the responsibility to remove or warn against conditions from
       which no unreasonable risk was anticipated, or from those risks which the
       person injured knew about or should have discovered. There is no duty to
       guarantee the safety of those entering upon the property. One in control of
       property is not the insurer of the safety of others on the premises. The person
       in control of the premises will not be held liable if the dangerous or defective
       condition is obvious, reasonably apparent, or as well-known to the person
       injured as to the person in control of the premises. The Plaintiff must exercise
       reasonable care for his own safety and for dangers that are obvious, reasonably
       apparent, and as well-known to the Plaintiff as to the person in control of the
       premises. Further, the Plaintiff must show that the injury was a reasonably
       foreseeable probability and that some action within the Defendant’s power
       more probably than not would have prevented the injury. You should consider
       all of the surrounding circumstances in deciding whether the Defendant used
       the proper care.

Mr. Indoccio argues that the trial court erred by including the following language in the
charge: “The person in control of the premises will not be held liable if the dangerous or
defective condition is obvious, reasonably apparent, or as well-known to the person injured
as to the person in control of the premises.” According to Mr. Indoccio, this instruction was
an incorrect statement of law and overlooked the facts of the case because Mr. Meeks’
employees had superior knowledge of the condition of the staircase since they created the
condition.

       The language Mr. Indoccio challenges comes from the “open and obvious” doctrine,
whereby a premises owner “will not be held liable if the dangerous or defective condition is
obvious, reasonably apparent, or as well known to the invitee as to the owner.” McCormick
v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980). However, the “open and obvious” doctrine
has been abrogated, and currently Tennessee law provides that “if the foreseeability and
gravity of harm posed by the defendant's conduct, even if ‘open and obvious,’ outweigh the
burden upon the defendant to engage in alternative conduct, the defendant has a duty to act
with reasonable care and the comparative fault principles apply under McIntyre v. Balentine.”
Coln v. City of Savannah, 966 S.W.2d 34, 37 (Tenn. 1998) (“[A]n open and obvious danger
does not automatically result in a finding of no duty and therefore no landowner liability.”).
The trial court’s charge is incorrect to the extent that it instructs the jury not to hold Mr.
Meeks or M&A Builders liable if the condition of the staircase was “open and obvious.”

       Although the challenged instruction is technically an incorrect statement of law, after

                                             -7-
considering the charge as a whole, we are of the opinion that any error in the trial court’s
charge was harmless. In a later portion of its charge, the trial court explained comparative
fault principles to the jury. After receiving the trial court’s charge, the jury returned a verdict
finding Mr. Indoccio fifty percent at fault, Mr. Meeks thirty-five percent at fault, and M&A
Builders fifteen percent at fault. Before the jury could allocate fault to the defendants, it was
necessary to find that both defendants were negligent and a proximate cause of Mr.
Indoccio’s injuries. “An erroneous instruction will not necessarily be considered reversible
error if the trial court later explains or corrects the instruction or if the trial court adequately
explains the issues in the case in other portions of its charge.” Ingram v. Earthman, 993
S.W.2d 611, 636 (Tenn. Ct. App. 1998) (citing In re Estate of Elam, 738 S.W.2d 169, 174
(Tenn. 1987); Smith v. Parker, 373 S.W.2d 205, 209 (Tenn. 1963); Ladd v. Honda Motor
Co., 939 S.W.2d 83, 94 (Tenn. Ct. App. 1996)). The jury’s allocation of half of the fault
between the two defendants clearly establishes that the incorrect statement of law in the
charge did not mislead the jury. Therefore, we find no reversible error in the trial court’s
instruction regarding notice of the dangerous condition.

       Mr. Indoccio next argues that the trial court’s instructions to the jury on negligence
and foreseeability were cumulative, overemphasized his burden of proof, and implied that
his injuries were not foreseeable. Mr. Indoccio takes issue with this portion of the trial
court’s instructions to the jury:

       Negligence consists of a failure to provide against the ordinary occurrences of
       life, and the fact that the provision made is insufficient as against an event as
       may happen once in [a] lifetime, or at least extremely rarely, does not make out
       a case of negligence upon which an action in damages will lie. Foreseeability
       as it relates to negligence does not include events which are bizarre or unique,
       and therefore outside the contemplation of a reasonably prudent person. No
       one is required to guard against, or take measures to avert, that which under
       the circumstances is not likely to happen or which is beyond the range of
       possibility. One is not bound to foresee every possible injury which might
       occur. Reasonable foresight, rather than prophetic vision, is the law's standard.

Mr. Indoccio argues that this portion of the charge made his burden of proof impossible to
meet, and implied that his injuries were “bizarre or unique” and required “prophetic vision”
to foresee. We emphasize “that Tennessee law is clear that a jury charge should be reviewed
in its entirety and considered as a whole when determining whether the trial court committed
prejudicial error.” Goff, 297 S.W.3d at 196-97 (citing Otis, 850 S.W.2d at 446). The entire
charge on negligence and foreseeability provides:

       In deciding this case you must determine the fault, if any, of each of the

                                                -8-
persons against whom fault is asserted. In this case, the Plaintiff, Benjamin
Indoccio asserts that the Defendants M&A Builders and Defendant Estate of
David Meeks, are each at fault. Defendant Estate of David Meeks, asserts that
the Plaintiff, Benjamin Indoccio, is at fault. If you find only one of these
persons to be at fault it is unnecessary to compare the fault of these parties, but
if you find that more than one of these parties had some degree of fault,
however great or small, you must then compare the fault of each of these
parties. Before you can find a party at fault, you must find that the party was
negligent and that his negligence was a legal cause of the injury or damage for
which a claim is made. Thus, fault has two parts: negligence and legal cause.
Negligence is defined as the failure of a party to use reasonable care. It is
either doing something that a reasonably careful person would not do, or the
failure to do something that a reasonably careful person would do, under
circumstances similar to those shown by the evidence. Negligence consists of
a failure to provide against the ordinary occurrences of life, and the fact that
the provision made is insufficient as against an event as may happen once in
[a] lifetime, or at least extremely rarely, does not make out a case of
negligence upon which an action in damages will lie. Foreseeability as it
relates to negligence does not include events which are bizarre or unique, and
therefore outside the contemplation of a reasonably prudent person. No one
is required to guard against, or take measures to avert, that which under the
circumstances is not likely to happen or which is beyond the range of
possibility. One is not bound to foresee every possible injury which might
occur. Reasonable foresight, rather than prophetic vision, is the law's standard.
A person may assume that every other person will use reasonable care unless
the circumstances indicate the contrary to a reasonably careful person. A
single injury can be caused by the negligent acts or omissions of one person or
more than one person. Negligence will not be inferred from the mere
happening of an accident or occurrence of an injury. Negligence must be
proven by a preponderance of the evidence. The second part of fault is legal
cause. A legal cause of an injury is a cause which, in natural and continuous
sequence, produces an injury, and without which the injury would not have
occurred. In order to be a legal cause, the negligence must have had some
significant relationship to the occurrence of the injuries. It must have been
substantial factor in bringing about the injury. Further, the harm must have
been reasonably foreseen or anticipated by a person of ordinary intelligence,
when the negligent act occurred. For example, it could be said that virtually
any injury could have been avoided had the Plaintiff stayed at home in bed on
the day in question, but the fact that the Plaintiff got out of bed does not have
a significant relationship to the occurrence of the injuries, and of course would

                                        -9-
       not be a legal cause of the injuries. A single injury can be caused by the
       negligent acts or omissions of one or more persons.

While the portion of the charge Mr. Indoccio challenges could have been more artfully
worded, after considering the trial court’s charge in its entirety, we are of the opinion that the
instructions given were a fair and accurate explanation of the law. As mentioned above, the
jury’s verdict clearly indicates that they understood the law of negligence and foreseeability.
Before they could allocate fault to either defendant, the jury was first required to find that
both defendants were negligent and a proximate cause of Mr. Indoccio’s injuries.
Accordingly, we find that the trial court’s charge on negligence and foreseeability did not
mislead the jury, and therefore does not constitute reversible error.

                                        IV. Conclusion

      For the foregoing reasons, we affirm the decision of the trial court. Costs of this
appeal are taxed to the appellant, Benjamin Indoccio, for which execution may issue if
necessary.




                                                     _________________________________
                                                     DAVID R. FARMER, JUDGE




                                              -10-
