Pluck v. National Health Investors Inc.
| Decision Date | 07 June 2002 |
| Docket Number | M1999-01596-COA-R3-CV |
| Parties | LINDA K. PLUNK, ET AL. v. NATIONAL HEALTH INVESTORS, INC.IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Lawrence County No. CC-381-97 Robert L. Jones, Judge
This appeal involves a nursing home visitor who injured herself by stepping into a grassy depression in the building's landscaping. The visitor and her husband filed suit in the Circuit Court for Lawrence County alleging that the nursing home's owner had failed to maintain the premises in a reasonably safe condition. A jury apportioned sixty percent of the fault to the nursing home and forty percent to the visitor and awarded the visitor $40,000 for medical expenses and permanent impairment. Both parties filed post-trial motions after the trial court entered a $24,000 judgment for the visitor. The visitor and her husband sought a new trial or an additur because the jury had not awarded damages for pain and suffering. The nursing home filed a Tenn. R. Civ. P. 50.02 motion for a judgment in accordance with its motion for a directed verdict. The trial court denied the nursing home's motion and suggested a $5,000 additur. The nursing home accepted the additur, and both parties appealed. The visitor asserts that the trial court erred by failing to grant a new trial, and the nursing home asserts that the trial court erred by denying its Tenn. R. Civ. P. 50.02 motion. We have determined that the trial court erred by denying the nursing home's Tenn. R. Civ. P. 50.02 motion because it was not reasonably foreseeable that visitors would be walking on the grassy area where the plaintiff fell. Accordingly, we reverse the judgment.
Randy Hillhouse, Lawrenceburg, Tennessee, for the appellants, Linda K. Plunk and Billy M. Plunk.
William C. Moody, Nashville, Tennessee, for the appellee, National Health Investors, Inc.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and PATRICIA J. COTTRELL, J., joined.
Linda Plunk and her husband live in Lawrenceburg. On November 17, 1996, they decided to visit Ms. Plunk's mother who was residing at the old Scott Hospital that was being operated as a nursing home by National Health Investors, Inc. ("NHC Healthcare"). While Ms. Plunk visited her mother, Mr. Plunk drove to Wal-Mart. Ms. Plunk bid her mother good-bye when she saw Mr. Plunk drive back to the nursing home. After her mother expressed an interest in seeing Mr. Plunk, Ms. Plunk told her to look out her window and that she would have Mr. Plunk waive to her as they drove away.
After Ms. Plunk left the building, she motioned her husband to pull around the circular drive to get closer to the window to her mother's room. Then, instead of getting into the couple's automobile, Ms. Plunk stepped off a concrete walkway leading to the circular drive, over the asphalt curb of the driveway, and onto a small grassy area that was part of the landscaping adjoining the building. She walked closer to her mother's window and waived to her mother while Mr. Plunk waived from the SUV. As Ms. Plunk walked back toward her automobile, she stepped in a depression in the grass and fell, breaking both of her ankles.
Ms. Plunk was hospitalized for ten days and was required to undergo surgery to repair her right ankle. After she was released from the hospital, she spent three weeks at a rehabilitation facility undergoing therapy. She was at first confined to a wheelchair, but she eventually progressed to a walker and then to a cane. Ms. Plunk's injuries have left her permanently impaired, and it is unlikely that her right ankle will ever regain its full range of motion.
The Plunks filed suit against NHC Healthcare in the Circuit Court for Lawrence County, alleging that the company had failed to maintain its premises in a reasonably safe condition. NHC Healthcare responded by insisting that it had breached no duty it owed to Ms. Plunk under the circumstances. The trial court submitted the case to a jury after denying NHC Healthcare's motions for a directed verdict at the close of the plaintiff's case and at the close of all the evidence. The jury determined that Ms. Plunk had incurred $35,000 in medical expenses and assessed her damages for permanent impairment at $5,000. However, the jury made no award to Mr. Plunk for the alleged loss of Ms. Plunk's society and services and specifically found that Ms. Plunk "did not suffer any pain and suffering, loss of capacity for enjoyment of life, [or] past disfigurement, and did not suffer any pain and suffering, loss of capacity for enjoyment of life, and disfigurement for the future." The jury also allocated sixty percent (60%) of the fault to NHC Healthcare and forty percent (40%) of the fault to Ms. Plunk. Accordingly, the trial court entered a judgment in Ms. Plunk's favor for $24,000.1
Both parties filed timely post-trial motions. Ms. Plunk moved for an additur, or in the alternative a new trial, on the ground that the verdict was inconsistent and inadequate because it did not include an award for pain and suffering. NHC Healthcare filed a Tenn. R. Civ. P. 50.02 motion for a judgment in accordance with its motions for directed verdict. The trial court denied NHC Healthcare's motion as well as Ms. Plunk's motion for a new trial. However, the trial court suggested a $5,000 additur2 which NHC Healthcare accepted. Both parties have appealed, attacking the judgment from opposite directions. Ms. Plunk insists that the trial court should have granted a new trial because the damage award is too low.3 For its part, NHC Healthcare insists that the trial court erred by failing to grant its motion for a directed verdict because the evidence does not establish that it breached any duty of care it owed to Ms. Plunk. If NHC Healthcare prevails, Ms. Plunk's arguments regarding the inadequacy of the damage award become largely academic. Accordingly, we will take up NHC Healthcare's issue first.
Tenn. R. Civ. P. 50.02 permits parties who have moved unsuccessfully for a directed verdict to move after the verdict "to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party's motion for a directed verdict . . .." Appellate courts use the same standard for reviewing the denial of a Tenn. R. Civ. P. 50.02 motion that they use for reviewing the denial of a Tenn. R. Civ. P. 50.01 motion for a directed verdict. Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977). Accordingly, appellate courts do not weigh the evidence, Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Benton v. Snyder, 825 S.W.2d 409, 413 (Tenn. 1992), or evaluate the credibility of the witnesses. Benson v. Tennessee Valley Elec. Coop., 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Instead, they review the evidence most favorably to the party against whom the motion is made, give that party the benefit of all reasonable inferences from the evidence, and disregard all evidence contrary to that party's position. Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994).
Granting a Tenn. R. Civ. P. 50.02 motion is appropriate only when the evidence is insufficient to create an issue for the jury to decide, White v. Vanderbilt Univ., 21 S.W.3d 215, 231 (Tenn. Ct. App. 1999); Underwood v. Waterslides of Mid-America, Inc., 823 S.W.2d 171, 176 (Tenn. Ct. App. 1991), or when reasonable minds can reach only one conclusion. Williams v. Brown, 860 S.W.2d 854, 857 (Tenn. 1993); Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn. 1980). A jury's verdict should not be supplanted under Tenn. R. Civ. P. 50.02, even if the facts are undisputed, when reasonable persons could draw conflicting conclusions from the facts. Gulf, M. & O.R.R. v. Underwood, 182 Tenn. 467, 474, 187 S.W.2d 777, 779 (1945); Pettus v. Hurst, 882 S.W.2d 783, 788 (Tenn. Ct. App. 1993).
NHC Healthcare premised its Tenn. R. Civ. P. 50.02 motion on the argument that it did not owe a duty to Ms. Plunk to maintain its landscaping in a way that it made it safe for her to traverse. This issue raises a legal question because determining the existence and extent of one person's duty to another is a question of law to be decided by the courts. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000); Green v. Sacks, 56 S.W.3d 513, 519 (Tenn. Ct. App. 2001).
Owners and occupiers of business premises are not insurers of the safety of their customers, potential customers, or the general public. McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 902 (Tenn. 1996); Basily v. Rain, Inc., 29 S.W.3d 879, 883 (Tenn. Ct. App. 2000). They have only a duty to use reasonable care to protect their customers from unreasonable risks of harm. Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998); Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn. 1984). This duty includes maintaining the premises in a reasonably safe condition either by removing or repairing potentially dangerous conditions or by helping customers avoid injury by warning them of the existence of dangerous conditions that cannot, as a practical matter, be removed or repaired. Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn. 1996); Basily v. Rain, Inc., 29 S.W.3d at 883.
A duty to act with due care arises when the risk of harm becomes unreasonable, and a risk of harm becomes unreasonable "if the foreseeable probability and gravity of harm posed by defendant's conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm." Rice v. Sabir, 979 S.W.2d at 308; McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). In determining whether a risk of harm is unreasonable, the courts consider the foreseeable probability of the harm or injury occurring; the possible magnitude of the potential...
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