Day on Torts
A door that opened into a lobby area and had no warning signs has been held to not be a dangerous condition under certain circumstances.
In Wimmer v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2017-00352-COA-R3-CV (Tenn. Ct. App. Jan. 26, 2018), plaintiff had just finished a doctor’s appointment and was waiting for a van from her assisted living facility to pick her up. So that she could see the van approaching, she was standing just inside the building near the glass sliding entry doors, but she was not in the vestibule area between two sets of sliding doors. While she was waiting, a man in scrubs opened a door from a fire stairwell that opened into the lobby, and the door hit plaintiff, knocking her over and injuring her. The door was a “wooden door with a black metal frame surrounded by red brick.” Plaintiff testified that she “did not see the door until after she was hit,” and that she “didn’t even realize there was a door at that time because I wasn’t paying any attention to the fact that there might be a door there.” The door did not have any warning that it opened into the lobby, and it did not have a window panel, so people coming through the door could not see whether there was anyone on the other side.
At trial, both sides presented expert testimony. When asked whether the door was a dangerous condition, plaintiff’s expert testified that “as you learn more about what occurred, you can see why things could become hazardous, if certain sets of circumstances were to prevail…” He also testified that it would have been appropriate for the door to have a warning, and that if there had been a panel of glass in the door, it “may not stop it from happening, but they’ll at least have some idea that it’s getting ready to happen.” Plaintiff also called as a witness one of defendant’s former security employees, who testified that the door in question was “an odd door,” and that there were a few doors at defendant’s facility “that you can be standing there and someone may push that door out and you may not be—they may not know someone is standing on the other side.” He stated that he had taken reports of people being injured by doors during his employment with defendant.
Defendant’s expert, on the other hand, testified that the door complied with applicable building codes, which “require neither signage on the door nor a glass panel in the door.” He further stated that the door “stood out quite well” and was not camouflaged.
The trial court ultimately found for defendant, holding that plaintiff had failed to prove causation. The Court of Appeals affirmed the finding that plaintiff had not proven causation, but also held that defendant was immune from suit under the GTLA.
It was undisputed that the GTLA applied to this suit, and the Court of Appeals found this issue to be dispositive of the entire case. Because the GTLA applied, plaintiff had to prove that immunity had been removed under one of the specific scenarios cited in the statute. First, the Court looked at Tenn. Code Ann. § 29-20-204, which removes governmental immunity “for any injury caused by the dangerous or defective condition of any public building…” Subsection (b) of this statute provides that it will not work to remove immunity “unless constructive and/or actual notice to the governmental entity of such condition be alleged and proved…” The Court found that the record did not preponderate against the trial court’s finding that the door was not a dangerous condition, and further noted that there was no evidence presented that the defendant had actual or constructive notice of the alleged defect. The Court pointed out that there was no proof of other accidents involving this specific door, and held that immunity was not removed under this section of the GTLA.
Next, the Court looked at Tenn. Code Ann. § 29-20-202, which removed immunity for “negligent operation by any employee of…other equipment while in the scope of employment.” Here, the Court pointed out that while plaintiff testified that she assumed the man who opened the door wearing scrubs was an employee of defendant, “this assertion is simply speculation.” The Court noted that the person’s identity was never proven, and there was no proof that he was acting within the scope of his alleged employment. Thus, the Court held that immunity was also not removed under this section, and that defendant’s immunity under the GTLA should have been ruled to be dispositive of the case.
Because the trial court decided this case on causation grounds, the Court gave a cursory review of that finding, affirming that plaintiff failed to prove causation. The Court quoted from the trial court’s opinion, which stated that plaintiff’s expert only testified that having glass in the door would have warned plaintiff, “not that the warning would have made it more likely than not that the accident would not have occurred,” and that plaintiff actually “testified that she would not likely have seen either a sign or a glass opening, since she testified she was not even aware the door was there until after the accident.” The trial court’s finding for defendant was thus affirmed.
One judge dissented from the majority opinion, writing that he thought that the hospital was liable for this injury. He stated that the door should be considered a dangerous condition, and that notice to defendant could be gleaned from the testimony of the previous employee, which meant that immunity should be removed under the GTLA. He further stated that the person wearing scrubs who opened the door could be considered an employee of defendant. He concluded that “the accident would have been avoided with the existence of a warning sign or a glass window.”
One lesson to learn here is to the importance of having your expert testify with the required degree of certainty. Having an expert that seems unsure or uses terms like “might have” or “could have” can be fatal to a case.