                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                           October 10, 2002 Session

           LEE KRAFT, as Executor of the Last Will and Testament
          of Ms. Helen Bergida, deceased v. EZO-GOTEN, USA, INC.

             A Direct Appeal from the Circuit Court of Davidson County
                 No. 006-96 The Honorable Walter Kurtz, Judge

                            ___________________________

             No. M2001-03137-COA-R3-CV - Filed December 11, 2002
                        ___________________________



Personal representative of deceased patron brought this premises liability suit against
restaurant owner/occupier alleging that patron tripped and fell from dangerous top step of
front stairs to restaurant. On defendant’s motion for summary judgment, the trial judge
accorded no weight to the opinion of plaintiff’s expert architect, ruled that there was no proof
of causation, and granted summary judgment. We find that a reasonable juror could conclude
from the circumstantial evidence in the record that patron fell due to tripping on the
dangerous top step. Because the circumstantial evidence creates a dispute as to a genuine
issue of material fact, we hold that summary judgment was inappropriate, reverse the trial
court, and remand the case.

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

JOHN A. TURNBULL, Sp. J., delivered the opinion of the court in which PATRICIA J.
COTTRELL, J. and WILLIAM BRYAN CAIN, J., concurred.

John W. Nolan and Stanley A. Davis, Nashville, counsel for Appellant

Gordon C. Aulgur, Nashville, counsel for Appellee
                                    Facts and Background


       On March 7, 1999, Ms. Helen Bergida was going, along with a group of family and
friends, to a birthday party at the Goten Restaurant in the Baker Building at the intersection
of West End Avenue and 21 st Avenue South in Nashville. The front steps at the entrance to
the Goten Restaurant consisted of seven concrete risers. The first six risers on these steps
were each six inches high. However, the seventh riser measured seven inches in height. It
was on this top step that Ms. Bergida alleged she tripped, causing her to fall down the steps
and suffer serious injury. Unfortunately, Ms. Bergida died of other causes after she filed suit,
but before making an affidavit or giving other sworn testimony in this cause.

        March 7, 1999, was a clear, dry day. Ms. Bergida was holding the handrail as she
walked up the steps to the Goten Restaurant, and climbed the first six steps without difficulty.
No one has testified they saw Ms. Bergida trip on the top step, but a witness, Morton Cooper,
looked up in time to see her falling from the sixth step as he indicated on a diagram exhibit
to his deposition. There was no warning that the top riser was an inch or more higher than
the first six risers, and it was not painted yellow. The difference in the height of the top riser
was not easily observable to one approaching or climbing the steps.

        Ms. Bergida had achieved the golden age of 80 years of age at the time of her fall.
She was in good health, living alone, able to care for herself, and functioning independently.
She had no history of difficulty walking or climbing stairs. In fact, she walked to a nearby
grocery store, exercised regularly, and did volunteer work at St. Thomas Hospital. In spite
of her age, Ms. Bergida was able to climb stairs without assistance. She baked bread weekly
and prepared meals and provided babysitting for her family and friends.

       Mr. Henry Bledsoe, an architect with thirty years experience, and an impressive
curriculum vitae, measured and photographed the steps and confirmed that “the riser at the
seventh and final step is an inch or more higher than the riser for the sixth step.” In his
affidavit, Mr. Bledsow cited the top riser as a violation of the standard building code
provision 1112.3.2:

               There shall be no variation exceeding 3/16 inch in the depth of
               adjacent treads or in the height of adjacent risers and the


                                                2
              tolerance between the largest and smallest riser or between the
              largest and smallest tread shall not exceed 3/8 inch in any flight.

        After describing the lack of uniformity in the treads and risers in the stairs to the
Goten Restaurant, Mr. Bledsoe noted there were four places in the stairs which could cause
a fall: “At the top riser, at the second tread from the top, at the second tread from the bottom,
and at the bottom riser.” He expressed the opinion in paragraph 10 of his affidavit: “Walking
up or down these stairs, because of the inconsistencies, a person cannot establish a rhythm
from one riser or tread to the next and more likely than not caused Ms. Bergida’s fall and
resulting injuries.” Mr. Bledsoe went further and listened to a tape recorded statement given
by Ms. Bergida to an investigator from the restaurant and read the depositions of five
companion witnesses. M r. Bledsoe swore in his affidavit in paragraph 12: “They all indicate
that Ms. Bergida was traversing the top two steps at the time of her fall. (emphasis added)
Therefore, it is my firm opinion that the cause of her fall was the variant in the height of the
risers, which violated the standard building code.”

      The trial judge, after taking defendant’s motion for summary judgment under
advisement, accorded the architect’s affidavit no weight. Wrote the trial judge:

              The plaintiff has used the architect’s affidavit as a conduit in an
              attempt to get into evidence a hearsay statement made by Ms.
              Bergida about her memory of the fall. This is impermissible.
              See Benson v. Tennessee Valley Electric Cooperative, 868
              SW2d 630, 641 (Tenn. App. 1993). More importantly, however,
              the court finds that the affidavit should be given no weight.
              This affidavit simply attempts to tell the fact finder how people
              might trip on the stairs and then postulates as to how this fall
              took place. The court is of the opinion that jurors are well
              equipped to make judgments about falls on stairs. This affidavit
              will not “substantially” assist the trier of fact in resolving the
              factual issue in this case. See, T.R.E. 7.02.




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The trial judge granted summary judgment to the defendant concluding his reasoning as
follows:

              The counter to the populist argument that all cases should go to
              the jury is the observation that a jury trial is an expensive and
              time-consuming way to resolve issues involving interpretations
              of law and that the cherished right to a jury trial should be
              reserved for those cases in which there is a viable dispute for the
              jury to resolve. We all owe an obligation to the justice system
              and to the jurors that serve it to insure that cases unsupported by
              appropriate facts are culled out. It is all too easy to submit the
              case to a jury where the law disfavors the claim but the
              emotional dynamic of the case might cause the jury to disregard
              the law. Only for those cases where the lack of factual dispute
              make the application of the law a certainty do we reserve
              summary judgment. This case is one of those.

       The case presents two issues for resolution by this court:

       1. Did the trial court err in according no weight to the expert opinion?

       2. Did the trial court err in finding no dispute of material fact as to the issue of
causation?

                                       Expert Opinion

      The standard of review to be applied to a trial judge’s determination of the
admissibility of expert testimony is whether the ruling amounted to an abuse of discretion.
Before reversal, the record must show that a judge applied an incorrect legal standard or
reached a decision which is against logic or reasoning and caused an injustice to the party
complaining. See State v. Coley, 32 S.W.3d 831, 833 (Tenn. 2000).

       In determining whether to admit or exclude expert opinion, the trial court must first
look to the legal standards set forth in Tennessee Rule of Evidence 702, which provides:



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              If scientific, technical, or other specialized knowledge will
              substantially assist the trier of fact to understand the evidence or
              to determine a fact in issue, a witness qualified as an expert by
              knowledge, skill, experience, training, or education may testify
              in the form of an opinion or otherwise.

       It is not disputed that Mr. Bledsoe, as an experienced architect, possessed the
knowledge, skill, experience, training, and education to accurately photograph and measure
the steps in question. Neither is it disputed that Bledsoe was qualified to recognize and cite
the applicable building code and demonstrate a violation of the code. Instead, it is his
opinion on causation which is challenged. Mr. Bledsoe’s first expressed opinion on
causation is: “Walking up or down these stairs, because of the inconsistencies, a person
cannot establish a rhythm from one riser to tread to the next, and more likely than not caused
Ms. Bergida’s fall and resulting injuries.” The first clause of this opinion - “because of the
inconsistencies, a person cannot establish a rhythm from one riser or tread to the next” is, we
believe, within the expertise of this experienced architect. Mr. Bledsoe had designed hotels,
restaurants, office buildings, manufacturing facilities, shopping centers, and retirement
centers. Appropriate pedestrian traffic flow is an essential part and focus of the design of
such buildings, as is a knowledge of buildings and accessability codes. Thus, it cannot be
said that Mr. Bledsoe did not have sufficient expertise to render this portion of his opinion.
Certainly Mr. Bledsoe had specialized knowledge superior to that of the common
understanding of a trier of fact regarding the necessary rhythm for safe pedestrian traffic on
stairs. Accordingly, we find that the first clause of this opinion not only constitutes
circumstantial evidence itself, but it would also substantially assist the trier of fact in
assessing and drawing inferences from other circumstantial evidence in this case. See
Hamblen v. Davidson, 50 S.W.3d 433, 440 (Tenn. App. 2000).

       In sharp contrast, the last portion of this opinion (“and more likely than not caused
Ms. Berdiga’s fall and resulting injuries”) is highly problematic. Because we do not have
before us a deposition or other cross examination of Mr. Bledsoe, we do not know whether
he had scientific or other underpinnings outside the common understanding of the jury upon
which to base his opinion of causation. The record contains no evidence that Mr. Bledsoe
had education or experience in safety, human factors analysis, or cause and effect of injuries.
The trial judge held that the opinion would not “substantially assist” the trier of fact in
resolving the factual issue (causation) in that jurors are well equipped to make judgments


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about falls on stairs. W e cannot say, on this record, that this portion of M r. Bledsoe’s
opinion on causation was admissible, or that the trial judge would have abused his discretion
in excluding it. 1

       In paragraph 12 of his affidavit, Mr. Bledsoe again expressed the opinion that the
cause of Mrs. Berdiga’s fall was the variation in height of the risers, which violated the
standard building code. He based this opinion, at least in part, on the inadmissible hearsay
statement given by Mrs. Berdiga to the investigator. The trial judge found impermissible this
use of the architect’s affidavit “as a conduit in an attempt to get into evidence a hearsay
statement made by Ms. Bergida about her memory of the fall.” The affidavit does not reveal
the details of Ms. Bergida’s memory expressed to the investigator, but does indicate the five
witnesses and M s. Bergida’s statement all indicate that Ms. Bergida was traversing the two
top steps at the time of her fall.

        T.R.E. 703 permits an expert to base an opinion or inference on facts or data
“perceived by or made known to the expert at or before the hearing.” The rule points out that
the facts or data relied upon by the expert need not be admissible in evidence “if of a type
reasonably relied upon by experts in a particular field in forming opinions or inferences on
the subject.” The facts or data may not stem from an untrustworthy source. If the expert
bases an opinion on evidence that is not independently admissible “the trial judge should
either prohibit the jury from hearing the foundation for the testimony or deliver a cautionary
instruction.” Benson v. Tennessee Valley Elec. Coop., 868 S.W.2d 630, 641 (Tenn. Ct. App.
1993). Here, the appropriate action of the trial court would have been to prohibit the expert
from revealing to the jury that Ms. Bergida had even made a statement if the opinion was
otherwise admissible. To reveal that a statement had been made by Mrs. Bergida or the
contents of such statement would result in unfair prejudice to the defendant which would
likely not be cured by a cautionary instruction.

      Other reasons, too, permit the exclusion of the opinion. The trial judge can read and
understand the witnesses’ testimony contained in the depositions. An expert’s opinion about
what other witnesses say does not substantially assist the court or trier of fact. Additionally,


       1
          The trial judge did not technically rule the opinion inadmissable. Instead, he chose to
“accord no weight” to the expert opinion. We will address below the question of whether the
trial judge may “weigh” evidence on motion for summary judgment.

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we cannot say the trial judge abused discretion in reasoning that “jurors are well equipped
to make judgments about falls on stairs” and that therefore the inference of causation
contained in the opinion would not substantially assist the jury in resolving that issue. 2

                                      Summary Judgment

       Summary judgments enjoy no presumption of correctness on appeal. Therefore,
reviewing courts must decide anew whether the requirements of Tenn. R. Civ. P. 56 have
been met. See Baisley v. Rain, 29 S.W.3d 879, 882 (Tenn. Ct. App. 2000). We are required
to consider the evidence in the light most favorable to Ms. Bergida, and we must resolve all
inferences in her favor. Summary judgment should not be granted if any doubt exists with
regard to the conclusions to be drawn from the evidence. See Byrd v. Hall, 847 S.W.2d 208,
210 (Tenn. 1993). “If the mind of the court entertains any doubt whether or not a genuine
issue exists as to any material fact, it is its duty to overrule the motion (citations omitted).
The court is not to ‘weigh’ the evidence when evaluating a motion for summary judgment.”
Byrd v. Hall, supra, p. 211.

        Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of the judge . The evidence
of the non-movant is to be believed, and all justifiable inferences are to be drawn in her
favor. Byrd v. Hall, supra, p. 212. “The purpose of summary proceeding is not the finding
of facts, or the determination of conflicting inferences reasonably to be drawn from those
facts.” Byrd v. Hall, supra, p. 216 (emphasis added). An inference is defined as “the process
of reasoning by which a fact or proposition sought to be established is deduced as a logical
consequence from other facts, or a state of facts, already proved or admitted.” See Thompson
v. Adcox, 63 S.W.3d 783, 790. (Tenn. Ct. App. 2002); Blacks Law Dictionary, 778 (6 th Ed.
1990). Our Supreme Court has defined an inference as “a permissible deduction from
evidence which a jury may accept or reject or accord such probative value as it desires.”
Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn. 1992). A jury may infer a causal connection


       2
          No objection to, motion to quash, or motion to strike the expert affidavit or any portion
of it was filed by the defendant. The trial judge has the inherent authority to sua sponte rule on
the admissibility of evidence, without an objection being raised. It is, however, good practice to
closely review an expert opinion affidavit and make appropriate objections since trial judges are
not all pro-active in initiating admissibility inquires.

                                                 7
through the use of circumstantial evidence. See Hamblen v. Davidson, 50 S.W. 3d 433, 440
(Tenn. App. 2000).

        The circumstantial evidence in this case does not exclude every other possible cause,
but it does present a sound logical basis for the inference that the defective step caused or
contributed to the cause of Ms. Bergida’s fall. The evidence at trial may show that Ms.
Bergida suffered mini-strokes; that she negligently failed to hold the handrail as she
approached the top step; or even that someone else pushed or jostled her as she got to the top
step. Some other logical inference may be drawn from the fully developed evidence. It will,
however, be for the jury to determine whether the uneven riser at the top step is the more
likely cause of her fall than any other explanation. See T.P.I. 3 - Civil 2.02. The trial judge,
on motion for summary judgment, does not weigh the strength of competing inferences.

        Taken in the light most favorable to Ms. Bergida, the evidence shows that the set of
steps in question failed to meet code, contained inconsistencies which did not permit a person
ascending them to establish a rhythm from one riser or tread to the next, and was especially
dangerous at the top step where the riser was a full inch higher than the others. We have
evidence that Ms. Bergida fell from the next to top tread, exactly where she could have
tripped on the too-high riser. We have evidence that Ms. Bergida was a healthy, active
elderly lady who had not before had difficulty climbing steps. She ascended the steps at a
normal rate holding the handrail, and climbed the first six steps without difficulty. A
reasonable person could logically conclude that the unsafe top riser caused or contributed to
her fall. In order to survive this motion for summary judgment, plaintiff does not need an eye
witness who observed Ms. Bergida catch her toe on the too-high top riser. Sufficient
circumstantial evidence exists in this record to create a genuine issue of material fact for trial
as to causation.

                                          Conclusion

        On summary judgment, a trial judge is not to weigh evidence or weigh the relative
strength of competing logical inferences which may be drawn from the evidence. Nor is the
trial judge to be concerned on summary judgment with the emotional dynamic of a case, or
be worried that the jury might disregard the law. Summary judgment is not the appropriate
vehicle to be used by the trial court to cull a weak or even a razor-thin case. Once the proof
is fully developed, juries have little difficulty in the culling process, and if the jury fails to


                                                8
follow the law or reaches a conclusion which is not supported by a preponderance of the
evidence, the trial judge then exercises thirteenth juror responsibilities.

       We reverse the grant of summary judgment and remand the case to the trial court for
further proceedings consistent with this opinion. Costs on appeal shall be paid by the
defendant.




                           __________________________________
                                 John A. Turnbull, Sp. Judge




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