Martin v. Washmaster Auto Center, U.S.A.

• Court: Court of Appeals of Tennessee
• Writing for the Court: CANTRELL
• Citation: 946 S.W.2d 314
• Parties: Harriet Teresa MARTIN, Plaintiff/Appellee, v. WASHMASTER AUTO CENTER, U.S.A., d/b/a Washmasters Auto Centers, and Murfreesboro Road Autowash Corporation, d/b/a Washmasters Auto Centers, Defendants/Appellants.
• Decision Date: 11 December 1996

Page 314

946 S.W.2d 314 Harriet Teresa MARTIN, Plaintiff/Appellee,
v.
WASHMASTER AUTO CENTER, U.S.A., d/b/a Washmasters Auto
Centers, and Murfreesboro Road Autowash
Corporation, d/b/a Washmasters Auto
Centers, Defendants/Appellants. Court of Appeals of Tennessee,
Middle Section, at Nashville. Dec. 11, 1996.
Permission to Appeal Denied by
Supreme Court May 5, 1997.

Larry R. Williams, Carolyn E. Underwood, Larry R. Williams, P.C., Nashville, for Plaintiff/Appellee.

Thomas Pinckney, Andy Rowlett, Howell & Fisher, Nashville, for Defendants/Appellants.

OPINION

CANTRELL, Judge.

In this slip and fall case, the main issue on appeal is whether there is any evidence to support the plaintiff's verdict. We resolve that issue against the plaintiff and enter a judgment for the defendant in accordance with the motion made at the end of all the evidence.

I.

After falling on the asphalt at Washmasters Auto Center, a Nashville carwash, Harriet Teresa Martin ¹ brought suit in the Davidson County Circuit Court where a jury found that she had sustained damages in the amount of $125,148.18. Upon the jury's determination that the Defendants, Washmaster Auto Center, U.S.A. d/b/a Washmasters Auto Centers, and Murfreesboro Road Autowash Corporation, d/b/a Washmasters Auto Centers, were 75% at fault and the plaintiff 25%, the trial court entered a judgment against the defendants in the amount of $93,861.14.

The defendants moved the trial court to set aside the judgment on the jury verdict and to enter a judgment in accordance with their motion for a directed verdict. In the alternative, the defendants moved the trial court for a new trial. The trial court denied

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these motions and on this appeal the defendants have raised issues involving the plaintiff's failure to prove that the defendant carwash was negligent.

"Where there has been a verdict for the plaintiff approved by the Trial Judge, in considering a defendant's motion for a directed verdict the Court of Appeals must look at all the evidence, construe it most favorably to the plaintiff, take the plaintiff's evidence which supports his theory as true, discard all countervailing evidence and indulge all reasonable inferences to uphold the verdict." Tennessee Liquefied Gas Corp. v. Ross, 60 Tenn.App. 648, 450 S.W.2d 587, 588 (1968). Pursuant to Tenn.R.App.P. 13(d), this Court's responsibility is to determine whether there is any material evidence to support the verdict.

II.

The proof in its most favorable light to the plaintiff shows that on December 28, 1989, Teresa Martin stopped at the Washmasters carwash in Nashville to get her car washed. While on the premises, Ms. Martin fell causing injury to her knee and giving rise to this action. Because this case places at issue Washmasters' negligent operation of its carwash, a detailed account of the carwash and its method of operation must be given. The Washmasters facility consists of a main building, a smaller building used for specialty detailing services, and a paved asphalt area which separates the two buildings. After turning over their cars to attendants, customers enter the main building where there is a customer service area and a lobby in which they can wait. Here, there are windows in the wall through which customers can watch their cars as they move through a car washing tunnel.

In 1989, Washmasters' most popular package, "the Works," included an alkaline presoak, a foamy tire cleaner, another alkaline, forty gallons of water, a hot wax, a shine plus, a polysilicone, and a final rinse of nine gallons of water. After receiving this treatment, the vehicles run through a forced air drying area at the end of the tunnel. Testimony established that some water might remain on the car and might drip off as the car emerges from the tunnel. When the manager was asked about the chemical residue included in this water, he stated that there would be none--that any liquid which drips off as the car emerges from the tunnel would be pure water.

When the cars reach the end of the tunnel, employees get in and drive them out of the tunnel and into one of several bays in the main building. Here, employees typically vacuum the interiors of the cars removing trash from them which could include liquid trash. In addition, on a busy day, the windows might be cleaned in this area. Once a car is finished in the bay area, an employee drives it out of the main building across a drain between the indoor bay and the outside asphalt area.

Once outside, an attendant will perform the final work on a car such as cleaning the tires, the windows, and the interior. The cleaning solutions are kept in squirt bottles in carts in this outside area. The window cleaner used is an all-purpose cleaner diluted with water at a ratio of twenty-four units of water to one unit of cleaner. The tires are cleaned by squirting a pad with Protect-All and then wiping the tires, although, sometimes, Protect-All is applied directly to the tires. Protect-All is a water-based chemical which, upon the label, states that it reduces friction. A degreaser may be sprayed to remove minor tar from the exterior of the cars. The carwash manager testified that carwash employees might occasionally drop the plastic bottles of cleaners causing some cleaner to spill out onto the asphalt.

The carwash employs supervisors, known as "loose persons," who roam the premises in search of problems that have arisen and customers in need of assistance. These employees pick up trash and take care of any spillage which might necessitate blocking off portions of the bay area in order to clean up a spill. The carwash manager testified that on a day such as the day that the plaintiff fell, Washmasters would have had six loose persons monitoring the carwash.

When the work in the pick-up area is completed and the car is ready, an employee waves a towel to signal to the customer. It

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is undisputed that the most feasible way for customers to retrieve their cars after exiting the lobby is to walk through the bay areas, across the drain, and onto the asphalt work area where the cars are waiting. Robert Whitaker, an expert for the defendant who is a structural engineer, testified that the surface of the bay floor consists of textured concrete paving stones which are widely used and recommended for car and pedestrian traffic. Mr. Whitaker observed that water accumulates in the bay area. He noted that, as the surface is made of precast concrete, it does not absorb anything. Although water would soak through the mortar joints of this surface if the stones had been installed, as recommended, in sand, Mr. Whitaker testified that they were installed in mortar. Moreover, the bay area has no slope to it further accounting for the accumulation of water.

On the other hand, according to this expert, the asphalt surface of the outside pickup area, where the plaintiff's injury occurred, is absorbent and thus even an oil spill will not stay on the surface for long periods. Mr. Whitaker testified that the asphalt, with its textured surface, has good traction even when wet. Both Mr. Whitaker and the carwash manager testified that water pools cannot accumulate on the asphalt surface because there is a slight grade toward the drain that separates the asphalt from the bay area.

When the plaintiff saw that her car was ready around 10:30 on the morning of December 28, she walked out of the Washmasters lobby and through the bay area with a purse over her left shoulder and a car seat in her right hand. After crossing the drain which separates the bay area from the outside asphalt area, plaintiff took several steps and then fell. She testified as follows, "[a]s soon as I walked off of the brick-type surface past the drain, maybe three or four steps, I immediately went down, slipped and went down on my left knee.... What I slipped on was very slippery; I mean, it had to be. I went straight down."

Ms. Martin testified that the carwash was very busy on the day of her accident and that she noticed "a lot" of water on the asphalt area prior to falling. When asked if it were possible that she slipped on something that a customer dropped or rainwater, Ms. Martin said, "I don't know. It wasn't visible.... This was something slippery other than just rainwater or ice water." She stated that no employee of the carwash had warned her about the slippery condition of the surface either on the day that she fell or on any of her previous eighteen or twenty trips to the carwash. She also testified that, on her previous visits, she had never noticed any dangerous condition.

As for prior accidents...