                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  February 5, 2014 Session

                     FRANK W. WILSON ET AL. v. TMBC, LLC

                     Appeal from the Circuit Court for Sevier County
                      No. 2011-0614-III     Rex Henry Ogle, Judge


                   No. 2013-01907-COA-R3-CV-FILED-MAY 27, 2014


The plaintiff1 took his bass fishing boat to defendant’s business for it to repair a “rodbox lid”
that did not fit properly. While the boat was there, defendant replaced the lid. Subsequently,
plaintiff went to the defendant’s store and got in the boat, which was on a trailer in the
parking lot, in order to examine the new lid. While attempting to exit the boat, plaintiff
caught his foot on something, tripped, and fell out of the boat. Plaintiff’s theory was that an
employee of the defendant had negligently left the old rodbox lid inside the boat and that
plaintiff tripped over the old lid. At the close of plaintiff’s proof, defendant moved for a
directed verdict, arguing that (1) plaintiff failed to prove breach of duty because, according
to defendant, he offered no evidence of the object that caused his fall; and (2) defendant
could not, as a matter of law, be liable because plaintiff was at least 50% at fault for his
injuries. The trial court directed a verdict for defendant. We hold that plaintiff presented
sufficient proof that the old lid caused him to trip and fall, and that a reasonable trier of fact
could conclude that the employee had negligently caused plaintiff’s injury. We further hold
that the question of comparative fault is properly for the jury to decide under the proof
presented at this trial. We therefore vacate the directed verdict and remand for further
proceedings.

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

C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Ronald J. Zuker, Knoxville, Tennessee, for the appellants, Frank W. Wilson and Sonya L.
Wilson.


       1
         Mr. Wilson’s wife, Sonya L. Wilson, was also a plaintiff. Hers was a derivative claim. All
references to “plaintiff” are references to Mr. Wilson.
Rockforde D. King and Melissa B. Carrasco, Knoxville, Tennessee, for the appellee, TMBC,
LLC.

                                               OPINION

                                                     I.

        Plaintiff bought a bass boat from defendant TMBC, LLC, in July 2010. The boat’s
rodbox lid did not fit properly. The rodbox lid is a hinged aluminum lid that is designed to
fit flush with the front deck of the boat, so that, when it is closed, it is part of the deck or the
“floor” of the front deck. The lid opens to a storage area below deck where fishing rods or
other things can be stowed. Significantly, the rodbox lid is covered with the same gray carpet
as the rest of the boat’s deck – it is designed to look like the rest of the deck as a solid floor
when it is closed.2

       On two occasions prior to the plaintiff’s May 24, 2011 fall, plaintiff took his boat to
defendant’s store to have the rodbox lid replaced. The third time plaintiff took his boat in,
he brought his friend, Larry Wright, with him, and they stayed in the store while the repairs
were being attempted.

        After about an hour, plaintiff and Wright returned to the service area and found a
technician inside the boat working on the lid. The technician asked plaintiff to get into the
boat to look at the replacement lid. Plaintiff climbed up into the boat without incident and
examined the new lid, which, to his dissatisfaction, was still not flush with the surface.
Plaintiff testified that as he turned to exit the boat, the following occurred:

                Well, when I told [the technician], you know, I wasn’t accepting
                it, I turned to exit the boat. And when I turned I reached for the
                steering wheel, and I was already in the motion to go forward
                and I raised my foot and something caught the back of my foot.
                When it did, it pitched me forward. I tried to grab going over,
                and I went down and landed on my shoulder, on asphalt.

Plaintiff did not see the object upon which he tripped. He testified that he did not know what
caused him to trip and fall, other than “something hit my foot as I [was] coming up with it
and pitched me forward.”



        2
        Plaintiff introduced a number of photographs of the boat and the rodbox lid into evidence, and these
photographs are included in the appellate record.

                                                    -2-
       Wright was standing nearby, outside the boat, and saw plaintiff fall out of the boat.
He testified as follows:

              After [plaintiff] tried the lid and their conversation took place
              about him not accepting it, [plaintiff] pivoted around, headed
              toward the cockpit area. And [in] the motion of leaning forward
              to grab ahold of the steering wheel again and work his way in
              the motion of exiting the boat the way he came in, I heard a
              clanging banging noise, and in that instant saw [plaintiff] pitch
              forward and land on the pavement, out of the boat.

Wright stated that shortly after plaintiff fell, Wright looked in the boat and saw the old
rodbox lid “cocked up about 6 to 8 inches up on the passenger side seat.” Wright testified
that there was nothing in the boat that could have caused the “clanging banging noise” other
than the old rodbox lid.

        Plaintiff brought this action alleging that defendant’s employee negligently left the old
rodbox lid between the seats of the boat, creating a dangerous condition that caused plaintiff
to trip and fall, and that the employee negligently failed to warn plaintiff that the old rodbox
lid was there. The case proceeded to a jury trial. Plaintiff presented the testimony of two
witnesses during his case in chief – himself and Wright. At the close of plaintiff’s proof,
defendant moved for a directed verdict, arguing, as already noted, that (1) plaintiff failed to
prove breach of duty because he offered no evidence of the object that caused his fall; and
(2) defendant could not be liable as a matter of law because plaintiff was at least 50% at fault
for his injuries. The trial court granted the motion and dismissed the case. In its written
order, the trial court stated only that “the Plaintiff failed to make out a prima facie case and
that the motion should therefore be sustained.” In orally granting the motion from the bench,
however, the trial court expounded on its reasoning:

              [A]fter considering everything, the Court has granted the motion
              for a directed verdict. In other words, the Court has found that
              if, in its opinion, that a reasonable jury could not find more than
              50% fault against [defendant], if it’s 50% or less, than
              [defendant] could not be found liable.

              And so, for that reason, the Court has dismissed the Plaintiff’s
              case. Regretfully, there’s serious injury here, no question about
              it, but you first have to determine liability before you even got
              to the issue of damages. But the Plaintiff would have had to
              [have] proven fault, at least 51% fault, on behalf of [defendant].

                                               -3-
              And the Court had to make a decision of law on whether they
              had done that in the eyes of the law, and the Court has found
              that they did not. And so, for that reason, the Court has
              dismissed the case.

Plaintiff timely filed a notice of appeal.

                                             II.

       Plaintiff raises the following issues on appeal:

              1. Whether the trial court erred in granting defendant a directed
              verdict at the close of plaintiff’s proof.

              2. Whether the trial court erred in granting defendant’s pre-trial
              motion in limine to exclude Wright’s testimony regarding what
              caused plaintiff to trip and fall from the boat.

              3. Whether the trial court erred in awarding defendant
              discretionary costs in the amount of $1,258.40 for court reporter
              fees.

                                             III.

      Our standard of review of a trial court’s directed verdict has been stated by the
Supreme Court as follows:

              In reviewing the trial court’s decision [on] a motion for a
              directed verdict, an appellate court must take the strongest
              legitimate view of the evidence in favor of the non-moving
              party, construing all evidence in that party’s favor and
              disregarding all countervailing evidence. Gaston v. Tenn.
              Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003). A
              motion for a directed verdict should not be granted unless
              reasonable minds could reach only one conclusion from the
              evidence. Id. The standard of review applicable to a motion for
              a directed verdict does not permit an appellate court to weigh the
              evidence. Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978).
              Moreover, in reviewing the trial court’s denial of a motion for
              a directed verdict, an appellate court must not evaluate the

                                             -4-
               credibility of witnesses. Benson v. Tenn. Valley Elec. Coop.,
               868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Accordingly,
               if material evidence is in dispute or doubt exists as to the
               conclusions to be drawn from that evidence, the motion must be
               denied. Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d
               887, 891 (Tenn. Ct. App. 1995).

Johnson v. Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn. 2006); see also Lake
v. Memphis Landsmen, LLC, 405 S.W.3d 47, 67 (Tenn. 2013). “Appellate courts must
conduct a de novo review of a trial court’s ruling on a motion for a directed verdict, applying
the same standards that govern the trial court’s determination.” Lake, 405 S.W.3d at 67.

                                               IV.

                                               A.

        We review the evidence presented by plaintiff at trial under the above-stated standards
to determine whether the trial court erred in its determination that plaintiff failed to establish
a prima facie case of negligence. “In order to establish a prima facie claim of negligence,
basically defined as the failure to exercise reasonable care, a plaintiff must establish the
following essential elements: ‘(1) a duty of care owed by defendant to plaintiff; (2) conduct
below the applicable standard of care that amounts to a breach of that duty; (3) an injury or
loss; (4) cause in fact; and (5) proximate, or legal, cause.’ ” Giggers v. Memphis Housing
Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153
(Tenn. 1995)). Plaintiff has characterized his cause of action as a premises liability case.
Although the “premises” at issue here are perhaps smaller than usual – the inside of
plaintiff’s bass boat – the action does have many of the aspects of a premises liability case,
in that plaintiff alleged that defendant created a defective or dangerous condition, in a space
over which defendant’s agent exercised occupation and control during the operative time at
issue. The Supreme Court has observed that,

               [i]n a premises liability case, an owner or occupier of premises
               has a duty to exercise reasonable care with regard to social
               guests or business invitees on the premises. The duty includes
               the responsibility to remove or warn against latent or hidden
               dangerous conditions on the premises of which one was aware
               or should have been aware through the exercise of reasonable
               diligence.

Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998) (footnote omitted). Furthermore,

                                               -5-
              [i]n order for an owner or operator of premises to be held liable
              for negligence in allowing a dangerous or defective condition to
              exist on its premises, the plaintiff must prove, in addition to the
              elements of negligence, that: 1) the condition was caused or
              created by the owner, operator, or his agent, or 2) if the
              condition was created by someone other than the owner,
              operator, or his agent, that the owner or operator had actual or
              constructive notice that the condition existed prior to the
              accident.

Blair v. W. Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004).

        Plaintiff’s theory is simple and straightforward. He asserts that defendant’s
technician removed the old ill-fitting rodbox lid, replaced it with a new one, and left the old
lid inside the boat in a place that (1) presented a tripping hazard to plaintiff and (2) caused
his injury. Defendant’s first argument is that plaintiff failed to present any proof tending to
establish the cause of his injury. As we have observed, “proof of negligence without proof
of causation is nothing.” Mosley v. Metro. Gov’t of Nashville and Davidson Cnty., 155
S.W.3d 119, 124 (Tenn. Ct. App. 204) (quoting German v. Nichopoulos, 577 S.W.2d 197,
203 (Tenn. Ct. App. 1978)). Without any proof of causation in this case – says defendant –
plaintiff cannot recover because it would be speculation for the jury to find that plaintiff
tripped over the rodbox lid. Defendant correctly points out that plaintiff’s own testimony
does very little to establish causation. Plaintiff testified candidly as follows:

              Q: You never saw the rodbox-lid at any time, did you?

              A: No, I just felt something hit my leg as I was exiting the boat.

              Q: But you never saw it ever, either going into the boat or during
              the process of going out of the boat, never saw it a single time?

              A: No.

                                    *      *         *

              Q: All right. So now, when you get in the boat and you put your
              foot in the driver’s seat and you get down here, what you’re
              saying is, if this rodbox-lid was there you never saw it?




                                               -6-
              A: I never saw it. If the carpet was up it’d been matching the
              bottom of the deck carpet plus the back, it looked carpet all the
              way.

                                     *      *         *

              Q: Okay. Now, let’s talk about this: You do not know what
              caused you to trip and fall out of that boat, do you?

              A: No sir, I do not.

              Q: And you’ve always said that you didn’t know what caused
              you to trip and fall; right?

              A: Correct. I just, I’ve always said that something hit my foot
              as I’s coming up with it and it pitched me forward.

                                     *      *         *

              Q: And you don’t know whether your foot hit the side of the
              boat, the side of one of the seats, you just don’t know what
              happened to you, all you know is your foot hit something and
              you fell out of the boat?

              A: Correct.

(Emphasis added.)

        Plaintiff’s lawsuit would clearly be in peril if this were the only causation testimony
he presented. But his friend, Wright, also testified regarding causation. He presented, in our
opinion, enough proof tending to establish that plaintiff tripped on the rodbox lid to establish
a jury question. Wright’s pertinent testimony is as follows:

              A: I heard a clanging banging noise, and in that instant saw
              [plaintiff] pitch forward and land on the pavement, out of the
              boat.

                                     *      *         *

              Q: After you heard this noise, what did you see?

                                                -7-
             A: [Plaintiff] pitched out of the boat onto the pavement.

             Q: Did you ever have occasion after that to look back into the
             boat?

             A: Yes I did.

             Q: And what did you see?

             A: Rodbox-lid cocked up about 6 to 8 inches up on the
             passenger-side seat.

             Q: And where is this, again?

             A: In between the starboard side, the driver of the boat’s seat,
             and the passenger, on the seat that lays down, the lid in a
             cocked-up position about 6 to 8 inches up on the passenger-side
             seat.

                                   *      *         *

             Q: All right. What color is it [the rodbox lid]?

             A: Gray, same as the carpet of the interior of the boat.

             Q: Can you say whether or not this was the way it was, as far as
             with the gray side up or gray side down?

             A: Gray side up.

                                   *      *         *

             Q: Let me ask you this, Mr. Wright: Did you see anything else
             in that boat that could’ve caused this noise you just testified to?

             A: No.

(Emphasis added.) Moreover, in his deposition testimony, Wright stated “with absolute
certainty” that plaintiff had tripped on the rodbox lid:



                                              -8-
              Q: Since you did not see what [plaintiff’s] foot touched, can you
              state with absolute certainty that it was the rodbox lid that he
              tripped on?

              A: In proportion to the noise and the position of [plaintiff], yes.

              Q: And what noise are you referring to?

              A: The clanging sound.

                                    *      *         *

              Q: Is there anything else in that boat that you saw that could
              have caused that sound other than what you have already
              testified to?

              A: No.

(Emphasis added.)

        In reviewing the trial court’s directed verdict, we must construe the evidence in the
light most favorable to the plaintiff – the non-movant. Johnson, 205 S.W.2d at 370; Sanford
v. Waugh & Co., Inc., 328 S.W.3d 836, 848 (Tenn. 2013); Eaton v. McLain, 891 S.W.2d
587, 590 (Tenn. 1994). Furthermore, we must “give [the non-movant] the benefit of all
reasonable inferences from the evidence.” Richardson v. Miller, 44 S.W.3d 1, 30 (Tenn. Ct.
App. 2000); Applewhite v. Blanchard, No. W2010-00343-COA-R3-CV, 2011 WL 345632
at *1 (Tenn. Ct. App. W.S., filed Feb. 1, 2011). Plaintiff testified that he fell because he
caught his foot on something, but he did not know what it was. Wright’s testimony
establishes that (1) Wright heard a clanging noise as plaintiff fell; (2) Wright looked in the
boat shortly thereafter and saw the rodbox lid in a “cocked-up position”; and (3) there was
nothing else in the boat that could have made the clanging noise. The totality of Wright’s
testimony gives rise to an inference that the rodbox lid is what plaintiff tripped over. The
trier of fact could reasonably draw that conclusion from the evidence presented. The
following recent guidance from the Supreme Court is instructive:

              It is well established that “[c]ause in fact and proximate cause
              are ‘ordinarily jury questions, unless the uncontroverted facts
              and inferences to be drawn from them make it so clear that all
              reasonable persons must agree on the proper outcome.’ ” Hale
              [v. Ostrow], 166 S.W.3d [713,] 718 [Tenn. 2005] (quoting

                                               -9-
                  Haynes [v. Hamilton Cnty.], 883 S.W.2d [606,] 612 [Tenn.
                  1994]); see also McCarley v. W. Quality Food Serv., 960
                  S.W.2d 585, 588 (Tenn. 1998); McClenahan v. Cooley, 806
                  S.W.2d 767, 775 (Tenn. 1991); Pullins v. Fentress Cnty. Gen.
                  Hosp., 594 S.W.2d 663, 671 (Tenn. 1979). Where the evidence
                  supports more than one reasonable conclusion, causation in fact
                  and proximate causation are issues of fact which should be
                  decided by the jury and not the appellate court. Pullins, 594
                  S.W.2d at 671.

Wilson v. Americare Systems, Inc., 397 S.W.3d 552, 559 (Tenn. 2013).

                                                      B.

       Regarding the trial court’s ruling on defendant’s motion in limine, the court allowed
Wright to testify about everything that he had seen and heard, but ruled that he “shall not be
allowed to testify about what caused Plaintiff . . . to trip and fall from the boat.” “When
arriving at a determination to admit or exclude evidence, trial courts are generally ‘accorded
a wide degree of latitude and will only be overturned on appeal where there is a showing of
abuse of discretion.’ ” Brandy Hills Estates, LLC v. Reeves, 237 S.W.3d 307, 318 (Tenn.
Ct. App. 2006) (quoting Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.
1993)). Defendant’s motion was grounded in its assertion that Wright lacked sufficient
personal knowledge to testify about his conclusion, as stated in his deposition, that plaintiff
“tripped on that lid.” While Tennessee Rule of Evidence 701 may provide a ground to admit
Wright’s inference testimony,3 any error in excluding Wright’s testimony was generally
harmless, because, as already discussed, the sum and substance of his causation testimony
was placed before the jury without objection.




        3
            Tennessee Rule of Evidence 701 provides:

                  (a) Generally. If a witness is not testifying as an expert, the witness’s
                  testimony in the form of opinions or inferences is limited to those opinions
                  or inferences which are

                  (1) rationally based on the perception of the witness and

                  (2) helpful to a clear understanding of the witness’s testimony or the
                  determination of a fact in issue.

(Bold font in original.)

                                                     -10-
                                                  C.

        Defendant’s second argument in support of its motion for directed verdict is that the
proof at trial establishes as a matter of law that plaintiff was 50% or more at fault for his own
injuries. Defendant has a reasonable argument that plaintiff was at fault in failing to see the
rather large rodbox lid4 and in not watching where he was stepping. Plaintiff also has a
reasonable argument in pointing out that the lid is covered in the same carpet as the deck of
the boat, and hence is “camouflaged” and not necessarily easily seen. Arguably, plaintiff also
may reasonably assert that the risk of danger posed by leaving the rodbox lid in the boat in
a place where it might easily be stepped on and tripped over is foreseeable, and that the
burden on defendant to take steps to avoid the risk – to put the old lid in a safer place or to
warn plaintiff of its location – is relatively slight.

        Tennessee courts have frequently held that comparative fault is a jury question unless
the proof is so clear that reasonable minds could not disagree. See, e.g., Wilson, 397 S.W.3d
at 559 (“The issue of allocation of comparative fault is also a determination of fact to be
made by the jury”); Hale, 166 S.W.3d at 718 (“Given that the evidence on summary
judgment must be viewed in the light most favorable to the plaintiff, . . . the issue of
causation, as well as the allocation of comparative fault, are determinations of fact to be
made by the jury”); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 92 (Tenn. 2000)
(“Because reasonable minds can differ on the reasonableness of [plaintiff’s] actions and the
extent of her fault, a jury should have decided the questions of fact relevant to this issue, and
the Court of Appeals erred by finding that, as a matter of law, [plaintiff] was at least fifty
percent at fault in causing her injuries”); Timmons v. Metro. Gov’t of Nashville and
Davidson Cnty., 307 S.W.3d 735, 745 (Tenn. Ct. App. 2009) (“The degree of fault of each
party in producing the injury is a circumstance for the finder of fact to consider and
determine”); Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402 at *6
(Tenn. Ct. App. M.S., filed Jan. 28, 2002) (“[I]n a vast majority of cases, the comparison and
allocation of fault is a question of fact to be decided by the finder-of-fact . . . . The task of
comparing and allocating fault may be taken from the jury only when it can be determined
beyond question (or alternatively, when reasonable minds cannot differ) that the plaintiff’s
fault is equal to or greater than the defendant’s”). In the present case, examining the proof
under our directed verdict standard, it is clear beyond question that a reasonable trier of fact
could conclude that plaintiff was less than 50% at fault for his injuries. Consequently, the
issue of comparative fault is for the jury.




       4
        The testimony established that the rodbox lid is about 38 inches long, about 19 inches wide, and
weighs somewhere between 14 to 18 pounds. The lid was admitted into evidence at trial.

                                                 -11-
                                             V.

        The trial court’s directed verdict is vacated and this case is remanded for further
proceedings. Given our disposition in plaintiff’s favor on the issue of the directed verdict,
the trial court’s award of discretionary costs in defendant’s favor is also vacated. Costs on
appeal are assessed to the appellee, TMBC, LLC.




                                           _____________________________________
                                           CHARLES D. SUSANO, JR., CHIEF JUDGE




                                            -12-
