Day on Torts
Where defendant introduced no material evidence at trial to support a finding that plaintiff was 77% at fault for a fall cased by a faulty automatic door, the jury’s verdict was vacated.
In Gilmore v. NOL, LLC A/K/A Premier Radiology, No. M2019-01308-COA-R3-CV (Tenn. Ct. App. May 27, 2020), plaintiff* was an 84-year-old physical therapy patient. When she was exiting defendant’s building after her physical therapy appointment, “the automatic door closed while she was standing just outside the threshold of the doorway,” causing her to fall and break her arm and leg.
Plaintiff filed a negligence and premises liability suit against defendant, and defendant asserted the defense of comparative fault in its answer. After a jury trial, the jury returned a verdict finding plaintiff 77% at fault and defendant 23% at fault, meaning that plaintiff did not recover any damages. Plaintiff filed a motion for a new trial, which the trial court denied. On appeal, plaintiff asserted that the trial court used the wrong standard in its role as thirteenth juror and that there was no evidence to support the comparative fault finding.
The Court of Appeals first ruled that the trial court used the correct standard in considering the motion for new trial. A judge considering a motion for new trial “is under a duty to independently weigh the evidence and determine whether the evidence preponderates in favor of or against the verdict.” (internal citation omitted). Plaintiff argued that the trial judge’s statement that he “must consider whether the record contains any material evidence to support the verdict, [and if there is,] the jury’s findings must be affirmed” showed that he used the material evidence standard, which would have been incorrect. The Court of Appeals pointed out, however, that the trial judge followed this oral statement with a correct statement of the standard, and that the judge’s written order stated that “having considered the filings of the parties, arguments of counsel and the evidence submitted at trial, [the judge found] that he [was] satisfied with the jury’s verdict…” The Court stated that “an appellate court should consider a trial court judge’s comments ‘as a whole’ when determining whether a trial judge misconceived his or her duty as a thirteenth juror,” and that in this case, plaintiff had failed to prove that the wrong standard was used. (internal citation omitted).
The Court next looked at plaintiff’s assertion that there was insufficient evidence to support the jury’s finding that she was 77% at fault, and it agreed with plaintiff. “To prove [plaintiff] was negligent, [defendant] was required to ‘present some material evidence that the conduct of [plaintiff] was a proximate cause of her accident.’” (internal citation omitted). Here, the evidence at trial included a video of plaintiff going through the door and falling, as well as testimony from plaintiff, plaintiff’s expert, and a representative of defendant. The video showed plaintiff approaching the door, the door opening, plaintiff stopping in the doorway and placing her hand on the doorjamb for almost ten seconds, then plaintiff continuing through the doorway. About two seconds after plaintiff stopped just past the threshold, the door closed and hit her, causing her to fall. Plaintiff testified that she was not having trouble walking, and the video showed her “standing solidly on both legs” when she was hit.
Plaintiff’s expert testified that sliding doors have two types of sensors, and that the presence detection sensors here “did not detect someone standing immediately adjacent to the doorjamb and failed to satisfy the industry standard.” The expert stated that the door would not have closed had the sensor been working properly, and that “industry standard requires automatic doors to remain open for at least thirty seconds when a presence sensor is triggered,” yet the video showed that the time plaintiff spent passing through the doorway was less than thirty seconds.
A representative from defendant was asked: “If the doors are working properly, do you agree that the doors should not contact and injure a pedestrian walking through the doorway,” to which he replied, “I would think that’s right.”
Based on this evidence, the Court of Appeals found that there was no support for the jury’s allocation of 77% fault to plaintiff. The Court explained:
[Defendant] contends that the jury could have found [plaintiff] was negligent based on the surveillance video. However, our review of the video convinces us that [plaintiff] did nothing that could have contributed to her being struck by the automatic door. The evidence showed the industry standard required the automatic door to remain open for thirty seconds when a presence sensor is triggered, and in this case the door was open for less than thirty seconds when it began to close and knocked [plaintiff] over. No evidence was introduced that [defendant] had posted any notices near the doors warning visitors against standing in any particular blind spots near the automatic door to avoid being struck by the door. Moreover, no evidence was introduced that [plaintiff] knew or should have known that the automatic door would close if she stood too close to the doorjamb.
Finding no evidence to support the verdict, the Court of Appeals vacated the jury verdict and remanded the case for a new trial.
Though a Court of Appeals reversal of a jury verdict is not very common, the Court made the right decision here based on the evidence it cited in its opinion.
NOTE: This opinion was published approximately one and a half months after the case was assigned on briefs.
*The plaintiff of record in this opinion was actually the estate of the woman who fell, as she apparently passed away sometime after testifying in court. For the sake of clarity, our summary refers to the woman who fell, was injured, and filed suit as “plaintiff.”