                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                November 17, 2010 Session

                         ZULA GRAY v. JOE BEDNARZ, JR.

                   Appeal from the Circuit Court for Sumner County
                         No. 29219-C     C. L. Rogers, Judge


               No. M2010-00010-COA-R3-CV - Filed December 16, 2010


Plaintiff appeals a jury’s determination that she was 60 percent at fault for the injuries she
sustained. We find there is material evidence to support the jury’s verdict. Therefore, we
affirm the judgment entered in accordance with the jury’s findings.

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

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which P ATRICIA J.
C OTTRELL, P.J., M.S., and R ICHARD H. D INKINS, J., joined.

David C. Risner, Kingston Springs, Tennessee, and Harry W. Miller, III, Chattanooga,
Tennessee, for the appellant, Zula Gray.

Gail Vaughn Ashworth, Nashville, Tennessee, for the appellee, Joe Bednarz, Jr.

                                           OPINION

        This action arose from a slip and fall that occurred in the backyard of the home of Joe
Bednarz, Jr. and his wife Kim Gray Bednarz. The plaintiff, Zula Gray, is the mother of Kim
Bednarz and the mother-in-law of Mr. Bednarz. Mr. Bednarz is the only defendant in this
action.

        On October 29, 2005, during one of her routine visits to the home of her daughter and
son-in-law, Plaintiff tripped and fell while crossing a timber walkway that Mr. Bednarz had
constructed two or three months earlier. As a result of the fall, Plaintiff tore her rotator cuff,
which required surgery and extensive physical therapy and recovery. One year later, on
October 27, 2006, Plaintiff filed this action against Mr. Bednarz (“Defendant”) alleging that
he negligently created the dangerous condition, the timber walkway, that he negligently
failed to properly maintain the timber walkway, and that he negligently failed to warn her of
the dangerous condition. In his Answer, Defendant denied liability and contended that
Plaintiff was barred from recovering her damages because she was negligent in assuming a
known risk and voluntarily proceeding, and that her negligence was greater than Defendant’s.

        A jury trial was held on September 23, 2009. Plaintiff testified that while she was
visiting with her daughter and grandson at Defendant’s home, she decided to feed the dogs
and to put water in their bowl that was located in the backyard. She stated she first walked
to the dog pen to give them food, then she walked from the dog pen to where the water
hydrant was located in the back yard. On her way to the water hydrant, Plaintiff chose a path
that required her to walk across a timber walkway. Plaintiff admitted the grass had grown
high over the timbers and that she could not see the edges of the timbers. She stated that she
had walked across the timbers on previous visits, but had never noticed any of them to be
loose or uneven. She admitted that there was another route she could have taken to the water
hydrant; she could have walked up onto the deck and then down the steps to get to the
hydrant.

        Defendant testified that he had installed the timbers a few weeks or a few months
before the accident1 to prevent mud from washing down a sloped area onto the concrete area
surrounding the pool. Admitting that he was not a skilled craftsman by any stretch of the
imagination, he explained that he installed the timbers by digging into the ground and then
placing approximately twelve timbers where he had dug. Defendant also testified that after
Plaintiff’s fall, he and his wife inspected the walkway and observed that one of the timbers
was sticking up four to five inches above the ground; thus, it was not even with the others.
He also stated that this was not the first time that one of the timbers had become dislodged;
explaining that when mud washed down the hill, a timber would occasionally become
dislodged and that he had to reposition some of the timbers. Defendant further admitted that
he never informed Plaintiff that some of the timbers had become dislodged.

       Kim Bednarz, Plaintiff’s daughter and Defendant’s wife, testified that she witnessed
her mother’s fall on the timber walkway. Mrs. Bednarz stated that her husband installed the
walkway around August of 2005. After the fall, she and her husband inspected the walkway
and discovered a timber sticking four to five inches above the ground.

        Following deliberations, the jury found that Plaintiff was 60 percent at fault and
Defendant was 40 percent at fault. The trial court entered an order in accordance with the
jury’s verdict on October 5, 2009. Plaintiff then moved for a new trial under Tenn. R. Civ.
P. 59, arguing that the verdict was contrary to the weight of the evidence presented at trial,
which the trial court denied. Plaintiff filed a timely appeal.

       1
           He testified that it could have been as recent as three weeks or as long ago as four months.

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                                           A NALYSIS

        Defendant raised the issue of comparative fault as an affirmative defense, pursuant
to Tenn. R. Civ. P. 8.03, contending that Plaintiff was barred from recovering her damages
because she was negligent in assuming a known risk and voluntarily proceeding, and that her
negligence was greater than his. The jury agreed finding that Plaintiff was 60 percent at fault.
Plaintiff contends that there was no material evidence to support the jury’s finding that she
was 60 percent at fault.

        Findings of fact by a jury in civil actions shall be set aside only if there is no material
evidence to support the verdict. Foster v. Bue, 749 S.W.2d 736, 741 (Tenn. 1988) (citing
Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.1984); T.R.A.P. 13(d)). When reviewing a
judgment based upon a jury verdict, this court is not at liberty to weigh the evidence to decide
where the preponderance lies, but is limited to determining whether there is material
evidence to support the verdict. In re Estate of Elam, 738 S.W.2d 169, 171 (Tenn. 1987)
(quoting Electric Power Board v. St. Joseph Valley Struct., 691 S.W.2d 522, 526 (Tenn.
1985)). We are required to take the strongest legitimate view of all of the evidence in favor
of the verdict, to assume the truth of all that tends to support it, allowing all reasonable
inferences to sustain the verdict, and to discard all to the contrary. Id. (quoting Electric
Power Bd., 691 S.W.2d at 526). “Even if we would have reached conclusions different from
those reached by the jury, if there is some material evidence to support the verdict, it must
be affirmed.” Mason v. Tennessee Farmers Mut. Ins. Co., 640 S.W.2d 561, 564 (Tenn. Ct.
App. 1982) (citing Davis v. Wilson, 522 S.W.2d 872, 875 (Tenn. Ct. App. 1974; Chattanooga
Gas Co. v. Underwood, 270 S.W.2d 652, 655-656 (Tenn. Ct. App. 1954)).

       When allocating the percentage of fault to each party, the jury may consider the
following factors:

       (1) the relative closeness of the causal relationship between the conduct of the
       defendant and the injury to the plaintiff; (2) the reasonableness of the party’s
       conduct in confronting a risk, such as whether the party knew of the risk, or
       should have known of it; (3) the extent to which the defendant failed to
       reasonably utilize an existing opportunity to avoid the injury to the plaintiff;
       (4) the existence of a sudden emergency requiring a hasty decision; (5) the
       significance of what the party was attempting to accomplish by the conduct,
       such as an attempt to save another’s life; and (6) the party’s particular
       capacities, such as age, maturity, training, education, and so forth.

Cannon v. Loudon County, 199 S.W.3d 239, 242 (Tenn. Ct. App. 2005) (quoting Eaton v.
McLain, 891 S.W.2d 587, 592 (Tenn. 1994) (footnotes omitted)).

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         Defendant admitted that he installed the timber walkway, that some of the timbers
failed to stay in place, and that he had repositioned timbers when they moved out of place.
He also admitted he did not warn Plaintiff of the fact that the timbers may not be level. From
this, it was reasonable for the jury to find Defendant negligent and, thus, at fault. Plaintiff
admitted that the grass had grown high over the timbers so that she could not clearly see all
of the timbers she intended to walk on. She also admitted that there was an alternate route
she could have taken to the water hydrant. Based on these and other facts, the jury found
Plaintiff was also at fault and apportioned 60 percent of the fault to Plaintiff and 40 percent
of the fault to Defendant.

       As stated above, we are not permitted to weigh the evidence. In re Estate of Elam, 738
S.W.2d at 171. Instead, we are required to take the strongest legitimate view of all of the
evidence in favor of the jury’s verdict and we are required to assume the truth of all that
tends to support the jury’s verdict. Id. Although we may have reached a conclusion different
from that reached by the jury, we have determined the jury could have reasonably inferred
that Plaintiff failed to exercise due care when stepping on the timbers and in choosing to
walk where the timbers were obscured by grass, as opposed to taking an alternate route that
posed no risks or less risk, and that she was more at fault than Defendant. Accordingly, based
upon the evidence and the very deferential standard of review to which we must adhere, we
affirm the jury’s verdict as there is material evidence to support the verdict.

                                      I N C ONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the Appellant, Zula Gray.




                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




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