Annette Dubose v. Debbie Ramey ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
ANNETTE DUBOSE, )
)
Plaintiff/Appellant, ) Madison Circuit No. C-94-321
VS.
)
) Appeal No. 02A01-9705-CV-00096
FILED
)
DEBBIE RAMEY, ) December 2, 1997
)
Defendant/Appellee. ) Cecil Crowson, Jr.
Appellate C ourt Clerk
APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY
AT JACKSON, TENNESSEE
THE HONORABLE FRANKLIN MURCHISON, JUDGE
THOMAS K. McALEXANDER
HILL BOREN, P.C.
Jackson, Tennessee
Attorney for Appellant
JONATHAN O. STEEN
SPRAGINS, BARNETT, COBB & BUTLER
Jackson, Tennessee
Attorney for Appellee
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
DAVID R. FARMER, J.
HOLLY KIRBY LILLARD, J.
Plaintiff/Appellant, Annette Dubose (“Dubose”), appeals the judgment of the trial
court denying her motion for a new trial and specifically finding that the jury verdict and the
judgment previously entered in this case were proper and correct. For reasons hereinafter
stated, we affirm the judgment of the trial court.
Procedural History
Dubose filed this lawsuit in the Madison County Circuit Court alleging that Debbie
Ramey (“Ramey”) was negligent (1) in keeping and maintaining a mix breed Chow which
she knew or had reason to know had a propensity for biting and (2) in keeping an animal
in an area where persons lawfully upon Ramey’s property would come into contact with the
dog. Dubose further alleged that Ramey was negligent in maintaining her garage in such
a manner as to present a hazard to persons lawfully upon her property. Ramey filed an
answer denying liability or negligence in any way and claiming that Dubose was barred
from recovery under the legal doctrines of comparative fault, assumption of the risk,
sudden emergency, and unavoidable accident. This case came to trial by jury on
November 18, 1996, with the Honorable Franklin Murchison presiding.
At the conclusion of the trial, the jury announced a verdict finding Dubose 100% at
fault. The trial court approved the verdict and entered a judgment accordingly.
Thereafter, Dubose filed a motion for a new trial on the grounds that there was no
legal or material evidence to support the jury’s verdict, and that the jury’s verdict in the
matter was contrary to the weight of the evidence presented at trial. Following a hearing
on the motion for a new trial, the trial court denied Dubose’s motion, finding that the jury
verdict and the judgment previously entered in this case were proper and correct. This
appeal ensued.
The issues on appeal are as follows: (1) Whether the trial court abused its discretion
in overruling Dubose’s motion for a new trial which requested relief on the basis that the
jury’s verdict was contrary to the weight of the evidence; and (2) whether there is material
evidence to support the jury’s verdict.
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Facts
On November 29, 1993, Dubose, along with her sister-in-law, Mrs. Dorothy Johnson
(“Johnson”), came to the home of Ramey in order to present a Christmas Around the World
party. This was a sales presentation whereby Dubose and Johnson displayed Christmas
decorations and other merchandise to Ramey and her guests.
Dubose and Johnson rode together and arrived at Ramey’s home between 6:15 and
6:30 p.m. on this day. Johnson pulled the car into Ramey’s driveway without entering her
garage. When Dubose arrived, Ramey’s dog, Bo-Bo, began barking, and Ramey came
out of her home into the garage. After quieting Bo-Bo, Ramey came to the car where
Dubose and Johnson were unloading their merchandise for the party. She helped them
carry the merchandise into the house. Bo-Bo was tied to the garage wall to prevent him
from escaping outside into the weather, which was rainy and cold. Bo-Bo was wearing a
cast on his leg from the shoulder down because he had been shot.
Ramey led Dubose and Johnson through the garage past Bo-Bo and through the
door that led into Ramey’s home. Ramey stopped and held Bo-Bo as Dubose and
Johnson entered the house.
Approximately five guests attended the party, excluding Dubose and Johnson.
Each of the guests was advised to use the front door because of Bo-Bo’s ill temperament.
That night, the guests at the party had numerous conversations about Bo-Bo. These
conversations centered around the fact that Bo-Bo had been shot and that the guests
needed to use caution around Bo-Bo. However, Dubose and Johnson contend that they
heard no such conversations concerning the dog or his tendencies to be temperamental.
After the presentation was completed, Ramey helped Dubose and Johnson carry
the merchandise to their car. After loading the car, Dubose realized that she had left her
sweater in Ramey’s home. Ramey contends that she told Dubose to stay in the car while
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she went to retrieve the sweater. Dubose, however, insists that she heard no such
utterance from Ramey. The testimony of Mrs. Betty Jones indicated that Ramey was,
indeed, coming in from the garage to retrieve Dubose’s sweater when the incident
occurred.
Dubose entered the garage and stepped over Ramey’s weed eater that was lying
on the garage floor. As Dubose stepped over the weed eater, Bo-Bo growled and lunged
at her. Dubose proceeded to back away from Bo-Bo, whereupon she fell over the weed
eater and broke her wrist. As her left leg swung into the air, Bo-Bo bit Dubose on the leg.
Dubose was taken to the emergency room where the injury to her wrist was
temporarily treated by Dr. Kelly Ballard. Thereafter, Dubose sought the advice and
treatment of Dr. James Craig at The Jackson Clinic.
Discussion
In reviewing a judgment based upon a jury verdict, this Court is not authorized to re-
examine the weight of the evidence, but may set aside a jury verdict only if there is no
material evidence to support the verdict. T.R.A.P. 13(d); Bynum v. Hollowell, 656 S.W.2d
400, 402 (Tenn. Ct. App. 1983); Cohen v. Cook, 462 S.W.2d 502 (Tenn. Ct. App. 1969).
In determining whether there is material evidence to support the verdict, we are required
to take the strongest legitimate view of all the evidence in favor of the verdict, to assume
the truth of all that tends to support it, to disregard all to the contrary, and to allow all
reasonable inferences to sustain the verdict. Bynum v. Hollowell, 656 S.W.2d at 402;
Budiselich v. Rigsby, 639 S.W.2d 663 (Tenn. Ct. App. 1982). If there is any material
evidence to support the verdict, it must be affirmed. City of Chattanooga v. Ballew, 354
S.W.2d 806, 809 (Tenn. Ct. App. 1961); Bynum v. Hollowell, 656 S.W.2d at 402.
We will first address Dubose’s contention regarding the apportionment of fault
concerning her claims of negligence against Ramey as we find such issue to be dispositive
of this appeal. In order to affirm the jury’s verdict in favor of Ramey, the question that we
must resolve is whether there is material evidence to support the jury’s verdict that the fault
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attributable to Dubose was equal to or greater than the fault attributable to Ramey. Eaton
v. McClain, 891 S.W.2d 587 (Tenn. 1994). If so, Dubose is precluded from recovery.
McIntyre v. Balentine, 833 S.W.2d 52 (1992). In Eaton, our Supreme Court set forth the
following nonexhaustive list of pertinent factors to evaluate in assigning percentages of
fault to each party:
(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.
Id. at 592.
Based on the evidence presented, we conclude that the most important factor to
consider is number two--whether Dubose was or should have been aware of the risk
involved in entering the garage without the accompaniment of Ramey and whether such
a risk was reasonable.
As mentioned above, Dubose claims that Ramey was negligent (1) in keeping and
maintaining Bo-Bo, which she knew or had reason to know had a propensity for biting, and
(2) in keeping Bo-Bo in an area where persons lawfully upon her property would come into
contact with him. Ramey asserts comparative fault and assumption of the risk as
defenses to these claims.
The doctrine of assumption of the risk, also known as volenti non fit injuria, is one
in which a plaintiff may not recover for an injury to which he or she assents, i.e., that a
person may not recover from an injury received when he or she voluntarily exposes himself
or herself to a known and appreciated danger. See Perez v. McConkey, 872 S.W.2d 897(Tenn. 1994). Historically, the requirements for the defense of volenti non fit injuria have
been that: (1) the plaintiff has knowledge of the facts constituting a dangerous condition;
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(2) he or she knows the condition is dangerous; (3) he or she appreciates the nature or
extent of the danger; and (4) he or she voluntarily exposes himself or herself to the danger.
Id. With the onset of our supreme court’s decision in Perez, the doctrine of implied
assumption of the risk has been abrogated and maintains no independent existence.
However, under the scheme of comparative fault adopted in McIntyre, the principles
contained within assumption of the risk survive as factors to be considered by the jury in
apportioning degrees of fault between the parties. Eaton v. McClain, 891 S.W.2d 587, 592
(Tenn. 1994).
After having stepped over the weed eater, having had Bo-Bo bark at Johnson and
her when they drove up to Ramey’s house, having observed Bo-Bo’s size and the fact that
he was placed on a cable in the garage, having seen the cast on Bo-Bo’s leg and being
told that he had been shot, having watched as Ramey quieted and held Bo-Bo by his collar
while Dubose and Johnson passed through the garage, and having been present when Bo-
Bo’s ill temperament was the topic of a variety of conversations at the party, Dubose
proceeded into the garage unattended by Ramey. Under the circumstances, we conclude
that there was material evidence to support the jury’s verdict that Dubose was equal to or
greater than 50% at fault by confronting the risk of entering the garage unattended by
Ramey. In view of the fact that Tennessee has adopted the doctrine of comparative fault,
whether the jury found Dubose to be 100% or 50% at fault is inconsequential. There was
material evidence to support the finding that Dubose, by assuming a known risk, was equal
to or greater than 50% at fault and, thereby, to bar her claim for relief.
Dubose also claims that Ramey was negligent in maintaining her garage in such a
manner as to present a hazard to persons lawfully upon the Defendant’s property by
leaving her weed eater on the garage floor. This is a claim based on premises liability.
Under premises liability, a premises owner has a duty to maintain his or her
premises in a reasonably safe and suitable condition; this general duty includes the
responsibility of either removing or warning against any latent dangerous conditions on the
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premises of which the owner is aware or should have been aware through the exercise of
reasonable care. Eaton v. McClain, 891 S.W.2d 587, 593-94 (Tenn. 1994); Chambliss v.
Shoney’s Inc., 742 S.W.2d 271 (Tenn. Ct. App. 1987); Teal v. E.I. DuPont de Nemours and
Co., 728 F.2d 799 (6th Cir. 1984). The open and obvious rule is one that has been utilized
in cases dealing primarily with premises liability. Historically, the open and obvious rule is
one whereby an invitee can be barred from recovery for injuries resulting from a danger as
readily apparent to the invitee as to the owner of the premises. With the adoption of
comparative fault principles, the law concerning the effects of the open and obvious rule
on a plaintiff’s claim for recovery is somewhat unsettled in Tennessee. One line of cases
deals with the open and obvious rule as a factor to be considered within the scheme of
comparative fault. See Cooperwood v. Kroger Food Stores, Inc., No. 02A01-9308-CV-
00182, 1994 WL 725217, at *2-3 (Tenn. Ct. App. Dec. 30, 1994); Broyles v. City of
Knoxville, No. 03A01-9505-CV-00166, 1995 WL 511904, at *3-4 (Tenn. Ct. App. Aug. 30,
1995); Shope v. Radio Shack, No. 03A01-9508-CV-00288, 1995 WL 733885, at *2-3
(Tenn. Ct. App. Dec. 7, 1995). A separate line of cases adheres to the principle that the
open and obvious rule is a complete bar to a plaintiff’s claim for relief. See Jones v. Exxon
Corp., 940 S.W.2d 69, 71-72 (Tenn. Ct. App. 1996); Valentine v. Weatherford, No. 02A01-
9511-CV-00264, 1996 WL 741878, at *3 (Tenn. Ct. App. Dec. 31, 1996); Tracy v. Exxon
Corp., No. 02A01-9512-CV-00277, 1996 WL 741876, at 2 (Tenn. Ct. App. Dec. 31. 1996);
Suddath v. Parks, 914 S.W.2d 910, 914 (Tenn. Ct. App. 1995).1
In this case, it is undisputed that Dubose saw the weed eater when she entered the
garage, and therefore, encountered an open and obvious danger.
Question: After you got your sister-in-law’s car loaded, what happened
after that?
Answer: [I] realized then that I did not have my sweater. And I said, “I’m
going back and get my sweater.” And I stepped across the
weed eater. And as I stepped across, I looked up, the dog growled,
and this--and I stopped. . .
Question: Now, when you went back in (to the garage), you stepped over
the weed eater; is that right?
1
W e note that our supreme court has granted permission to appeal concerning the issue of the
interpretation of the open and obvious rule in Tennessee in Coln v. City of Savannah, No. 02A01-9507-
CV-00 152, 1996 W L 54465 2 (Ten n. Ct. App. Sept. 25, 1996) perm . app. granted (Feb. 3, 1997).
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Answer: Yes, sir.
Which line of cases we follow concerning the interpretation of the open and obvious rule
is of no consequence. The end result is the same. Regardless of whether the open and
obvious rule is a factor to be considered under comparative fault or a complete bar to
plaintiff’s recovery, Dubose is barred from recovery because there was material evidence
from which the jury could reasonably find Dubose equal to or greater than 50% at fault in
this matter.
The trial court entered a judgment in favor of Ramey because the jury found Dubose
to be equal to or greater than 50% at fault in this incident. In fact, the jury found Dubose
to be 100% at fault. We affirm the judgment of the trial court denying Dubose’s motion for
a new trial and affirming the jury verdict because the record contains material evidence to
support a verdict of equal to or greater than 50% fault on the part of Dubose. As
mentioned above, in view of the fact that Tennessee has adopted the doctrine of modified
comparative fault, it is of no consequence whether the jury found Dubose to be 100% at
fault or 50% at fault. In any event, there was material evidence to support the jury’s verdict
that Dubose was 50% at fault or greater and, thereby, to bar her claim for relief.
Denial of Motion for a New Trial
Trial courts are afforded broad discretion in procedural matters in order to expedite
litigation and to preserve fundamental rights of the parties. This Court will not reverse a
discretionary judgment of the trial court unless it affirmatively appears that such discretion
has been explicitly abused to great injustice and injury of the party complaining. See
T.R.A.P. 36(b); Douglas v. Estate of Robertson, 876 S.W.2d 95, 97 (Tenn. 1994); Bruce
v. Bruce, 801 S.W.2d 102, 107 (Tenn. Ct. App. 1990); Esstman v. Boyd, 605 S.W.2d 237,
240-41 (Tenn. Ct. App. 1980).
After an examination of the record, we find no abuse of discretion by the trial court
in denying Dubose’s motion for a new trial. Dubose has made no showing that the trial
court abused its discretion in denying her motion for a new trial, much less an abuse that
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rises to the level of a great injustice or injury to her. The record evinces sufficient evidence
for the trial judge to deny the motion for a new trial. We affirm the action of the trial court
in overruling Dubose’s motion for a new trial.
Frivolous Appeal
Ramey asserts that Dubose’s appeal is frivolous and that she should be awarded
damages in accordance with T.C.A. § 27-1-122 (1980). We are not persuaded and do not
find this appeal to be wholly insubstantial or brought solely for the purpose of delay.
Accordingly, we decline to award Ramey damages for frivolous appeal.
Conclusion
The trial court’s judgment affirming the verdict of the jury and denying Dubose’s
motion for a new trial is affirmed. Costs are taxed to the Appellant, for which execution
may issue if necessary.
HIGHERS, J.
CONCUR:
FARMER, J.
LILLARD, J.
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