IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 18, 2017 Session

LINDA WIMMER v. CHATTANOOGA-HAMILTON COUNTY 

HOSPITAL AUTHORITY D/B/A ERLANGER HEALTH SYSTEM

 Appeal from the Circuit Court for Hamilton County

No. 14C507 W. Neil Thomas, III, Judge

No. E2017-00352-COA-R3-CV

Linda Wimmer (“Plaintiff”) sued Chattanooga-Hamilton County Hospital Authority d/b/a 

Erlanger Health System (“Erlanger”) with regard to an incident in which Plaintiff was hit 

with an interior door and seriously injured. After a trial without a jury, the Circuit Court 

for Hamilton County (“the Trial Court”) entered its Memorandum and Judgment finding 

and holding, inter alia, there was no evidence that the location of the door constituted a 

defective design and no evidence that the door itself was defective, and that even if 

Erlanger had a duty to post a sign or put a glass window in the door, there was no 

evidence of causation. The Trial Court entered judgment in favor of Erlanger. Plaintiff 

appeals to this Court. We find and hold that Erlanger was immune from suit pursuant to 

Tenn. Code Ann. § 29-20-101, et seq., that Plaintiff failed to prove that said immunity 

was removed, and, in the alternative, that Plaintiff failed to prove causation. We, 

therefore, affirm the Trial Court’s judgment in favor of Erlanger.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.

FRIERSON, II, J., joined, and JOHN W. MCCLARTY, J., filed a separate dissenting 

opinion.

Marvin B. Berke and Timothy J. Crosby, Chattanooga, Tennessee, for the appellant, 

Linda Wimmer.

Joshua A. Powers and Hanna L. Burnett, Chattanooga, Tennessee, for the appellee, 

Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System.

01/26/2018
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OPINION

Background

The accident giving rise to this suit (“the Accident”) occurred in October of 2013. 

Plaintiff was at Erlanger for a doctor’s appointment. After her appointment, Plaintiff 

stood in a lobby area while she waited for her ride. While waiting, Plaintiff was hit and 

knocked to the ground when an interior door (“the Door”), which opened outward into 

the lobby area, was opened by an unknown person. Plaintiff filed suit against Erlanger in 

April of 2014, and the case proceeded to a bench trial in January of 2017.

At trial, Plaintiff testified that she was 71 years old at the time of the Accident and 

lived in a senior living facility. Prior to the Accident, she was able to walk and drive. 

Plaintiff stated that she used a cane when “the ground was uneven or whatever, rough 

terrain, it helped.” Plaintiff testified that she saw several doctors at Erlanger for care and 

treatment including Dr. Ingram, an orthopedic surgeon. On the day of the Accident, 

Plaintiff was at Erlanger to see Dr. Ingram, whom she had been seeing since April of that 

year for care and treatment of a fractured arm. Plaintiff stated that on that day, she “felt 

like [she] was getting better. [She] felt like [her] arm was healing. It was almost healed. 

It was getting better.”

Although Plaintiff was capable of driving, she did not drive to her appointment on 

the day of the Accident. Instead, she took the senior living van from the senior living 

facility where she resided. 

Plaintiff entered the building that day through the same lobby where the Accident

later occurred. After her appointment with Dr. Ingram, Plaintiff returned to this lobby to 

wait for her ride on the senior living van. Plaintiff testified that she left Dr. Ingram’s 

office just before 11 a.m.

The lobby where Plaintiff waited has outside automatic glass doors and a vestibule

area. Plaintiff had waited in the vestibule in the past “in the summer when it was warm.” 

She agreed when asked that in the past she had stood by the brick wall in the vestibule 

and was out of the way of the path of foot traffic. Plaintiff, however, did not wait in the 

vestibule area on the day of the Accident. Instead, she waited inside the building. She 

stated:

Another thing is, if you waited there [in the vestibule] and it was chilly, the 

doors kept opening for people coming in and out. And the cold air would 
3

blow in on you. That’s why that day in October, when it was chilly, I was 

on the inside back behind the . . . I was inside the building. 

Plaintiff stated: “The vestibule temperature would have been about 20 degrees lower than 

being in the building.”

Plaintiff was asked if she ever had seen the Door open, and she stated:

No. I didn’t even realize there was a door there at that time because I 

wasn’t paying any attention to the fact that there might be a door there, 

because I didn’t think about a fire door or anything like that. I was thinking 

about what I was going to do when I was better. . . . I was just thinking at 

that time what I was going to do, if I were getting better, what I could do.

She further stated: 

I was getting better, and I was planning on going to see my sister out in 

Nevada, because she’s 78. I’m 74. At the time, we were younger, but my 

sister’s also very ill. She has a lung disorder. And that may be fatal. And I 

wanted to see her before we both died, you know, because we’re the only 

two family members - - immediately family members - - left.

Plaintiff testified that there was no sign telling her not to stand where she was 

standing, and that she did not notice a window in the Door. There were no places to sit 

by the Door. Plaintiff admitted that the Door is a wooden door with a black metal frame

surrounded by red brick. She stated, however, that she did not see the Door until after 

she was hit. Plaintiff admitted when asked that she did not know the Door was there until 

after she was hit.

Plaintiff was asked if during her past visits to Erlanger she had seen other people 

standing in the area where she had been standing when the Accident occurred, and she 

stated: “Yes. People stood there.” Plaintiff stated:

It was typical to wait there, not only myself, but there would be other 

people waiting at times. It wasn’t real crowded up together, but there 

would be - - one or two other people would be standing here, waiting for 

their rides, because our van wasn’t the only one that came up there to pick 

people up.

Plaintiff was asked why she didn’t sit in an available chair away from the Door,

and she stated:
4

I could, but I couldn’t have seen [the van driver] until he pulled up 

right in front of the doors, which upset him, because he - - people start 

blowing their horns at him and cursing him and stuff like that. He had 

incidents that happened in front of that door when he had to pull up and 

wait for you. He didn’t like it. . . . Well, he couldn’t come in the building 

and say anything. He couldn’t leave the van. He’d expect you to see him, 

and that’s why I was standing. . . . And he was coming from the left 

direction. So I had to see from the left up the driveway, to see him turning 

into the driveway. And I would start out the door, because he had to put the 

lift down to put me in the van. You couldn’t get in the door of the van. 

You had to go in the back end of it through a lift.

When asked if she could have seen the senior living van if she had been sitting in a seat

away from the Door, Plaintiff stated:

I would say I could probably see out the front door, but you couldn’t see the 

curb where he had to turn in the driveway. But you could probably see a 

small portion, a portion of the driveway. Maybe. I’d have to - - my 

walking is very slow. I’m supposed to get around. By the time I got out 

there, he’d have to be sitting there for a couple minutes.

Plaintiff described the Accident, stating:

I was knocked about halfway across the foyer there and finally fell 

on my back. And when I fell, I couldn’t feel anything from my neck down. 

I was afraid that I’d been paralyzed, broken my back or something.

And the man was right behind me, and he had on scrubs and he had 

on the bandana. And I assumed he was an employee of the hospital since 

he was dressed in scrubs and they were blue.

He bent over and [sic] me and he said, “Are you all right?”

I said, “No. I can’t feel anything from my neck down.”

He says, “I can’t stay with you, but I’ll go get help.”

And he ran off, going in the direction down the hall. . . . And I lay 

there for about 15 minutes more and he came running back. He said, “I 

couldn’t find anybody. I’ll be back.”
5

And he ran off again. In a little while, a lady came down. And he 

said, “I’ll get someone to stay with you.”

A lady came down. I assume she was an office worker. And she 

said, “I’m going to stay with you until the ambulance comes.” So she did. 

She stayed there and talked to me till the ambulance came.

Plaintiff stated that she fractured her left hip. After the Accident, Plaintiff was 

unable to return to the senior living center, but she instead had to go to the Life Care 

Center. Plaintiff had surgery in October and in November and also has had physical 

therapy. She stated that her pain “[n]ever ends.” Plaintiff testified that she has pain in 

her shoulders, back, and neck. She stated:

I can barely walk. And I go through these periods where it seems like I can 

walk better, and then one morning I’ll wake up and can hardly walk. This 

will go on for weeks, and then I can walk better, and then it will go back to 

the way it was.

Plaintiff testified that she now uses a walker. She stated:

Both legs give me trouble now, because one leg is shorter than the 

other. And one arm is - - if I can put my jacket down, if you can see, my

arms aren’t the same length anymore. This one is shorter than this one.

The parties stipulated that Plaintiff had medical expenses of $125,000. 

Clarkson Lee Mason, a practicing engineer, testified for Plaintiff. Mr. Mason 

testified that he was 75 years old and had been practicing engineering for 47 years. Mr. 

Mason stated that he has owned his own business for approximately the last 30 years. 

Mr. Mason is licensed in Tennessee. He stated that he also is licensed in two other states

and previously was licensed in six states, but did not renew all of his licenses because he 

wasn’t doing business in those states anymore. 

Mr. Mason testified that he visited the site of the Accident and inspected the Door 

several times. He stated:

Well, it looked just like any other door, you know, but it’s not just 

any other door. And I know that. It’s the fire escape. In this case it’s the 

fire escape. It could be any kind of means of escape. It’s an escape door.
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And there’s nothing there that really says - - that I can see, that I can 

see right now, that suggests it is an exit hatch or exit-way. So other than 

that, it just looked like another office door.

Mr. Mason was asked if he believed that the Door was a dangerous condition, and 

he stated:

Just by itself sitting there, I didn’t, because I wasn’t all that 

acquainted with the situation that had occurred there.

But as you learn more about what occurred, you can see why things 

could become hazardous, if certain sets of circumstances were to prevail 

approximately at the same time.

When asked if he had an opinion about whether the Door should have had a sign, 

Mr. Mason stated:

Yes, I do have an opinion. And I think it’s appropriate, very 

appropriate for any exit door to have a warning to other people who may be 

casually waiting to - - waiting to walk by it or whatever, to let them know 

that there’s more than likely - - excuse me, the purpose of that door there is 

to allow people to come out, and so it shouldn’t be an unreasonable 

expectation that somebody would come out, that someone might come out 

at a high rate of speed when there’s not an apparent fire or emergency 

situation. I’m not sure how you can put up a detector to make that happen. 

But they need to have an ability to see what’s in front of them.

With regard to the necessity for a sign, Mr. Mason further stated:

Well, from my engineering point of view and, I’d like to say, 

common sense based on my engineering and experience in the business 

having to do with buildings, you kind of would expect there to be some sort 

of a warning sign there so that couldn’t recur, that action wouldn’t recur.

Mr. Mason was asked if someone standing in front of the Door with no sign would 

know it was an exit door, and he stated: “Only by past experience, having been there 

often enough to realize that. But there’s not distinguishing marks.” Mr. Mason stated 

that in his opinion the cost of such signs is minimal. According to Mr. Mason, there is no 

way for people to know in the absence of a sign that the Door might open into them. Mr. 

Mason did not explain his opinion as to why people would not know without a sign 

telling them that the Door might open into them.
7

When asked if the Door not having a sign was a problem, Mr. Mason stated: 

“Well, the problem was not so much the sign. The problem was there wasn’t any way for 

her to be seen or for her to see what was happening, and she did get hit and get hurt.” He 

was asked if he had an opinion about whether there should be glass in the Door, and he 

testified:

[I]n a situation where we have an injury that has occurred, you need to be 

able to let whoever is on the inside know there is a falling hazard on the 

inside. And vice versa; someone on the outside knows or can perceive 

someone coming through that door and hit them. That may not stop it from 

happening, but they’ll at least have some idea that it’s getting ready to 

happen . . . .

Mr. Mason was asked if it were common to have glass in a fire escape door, and 

he stated that it was not unheard of or unusual to have a glass panel. Mr. Mason testified 

that the fire code provides that a door may be replaced in total with a properly rated glass 

door or that portions of a door may be glass. He stated that the fire code gives 

dimensions for windows in doors, but does not require windows in doors.

Rodney J. Patton testified at trial. Mr. Patton works for Regions Bank in the 

corporate security division. He previously worked for the Hamilton County Sheriff’s 

Office and did security at Erlanger as a commissioned police officer. During his time 

working for Erlanger, Mr. Patton became interim chief of hospital police. Mr. Patton 

testified that things at the hospital changed and police were outsourced to private 

security. As a result, he and others have a lawsuit pending against Erlanger. Mr. Patton 

left Erlanger in late 2010 or early 2011.

Mr. Patton testified that he was familiar with the Door at issue. He testified: “We 

routinely had incidents that involved individuals, whether it be patients or visitors, that 

may have been struck by a malfunctioning door or a door at Erlanger.” When asked 

specifically about the Door, Mr. Patton stated:

That is an odd door. There’s a couple of doors in the medical mall 

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. 

There’s a couple of doors like that.

Mr. Patton was asked if he ever made reports about doors hitting people while at 

Erlanger, and he stated: “Routinely, if an individual got hit by a door, that is something 

that would have went up to the A1 house supervisors at Erlanger.” 
8

Michael Roy Baker, the senior director of facilities for Erlanger, testified at trial. 

He described his role as “oversight of operations of real estate, construction, engineering, 

and environmental services.” Mr. Baker was contacted by risk management on the date 

of the Accident and told that someone had fallen. 

Mr. Baker explained that seating in the lobby where the Accident occurred is some 

distance from the outside door, and the chairs face toward one another, not toward the 

outside doors. He stated that the “common waiting areas” are not “designed to see out 

the door.”

James Howard Robinson, Jr., an engineer, testified for Erlanger. Mr. Robinson 

testified that he is licensed in 46 states including Tennessee. He is board certified as a 

structural engineer and a forensic engineer. Mr. Robinson was asked what a forensic 

engineer is, and he stated:

A forensic engineer in structures and building is an engineer that will 

look at different systems of a building, wherever there’s a failure. Could be 

in the structural system, could be in the egress system, could be in the 

mechanical, electrical, any of those types of systems.

But a forensic engineer will evaluate a problem or a failure within 

one of those systems to determine why it failed and then, most likely, try to 

determine what can be done to correct it. 

Mr. Robinson testified that he was hired to evaluate the area around the Door and 

determine if there were code violations and if it was code-compliant. Mr. Robinson 

stated that he visited the site for approximately one hour. He stated that he:

did a visual review of the area around the door, the area around the entrance 

and exit to the building itself. And I went inside the stairwell, went up a 

flight of stairs, came back down, looked at everything inside, took quite a 

few measurements of what was in there and quite a few photographs.

Mr. Robinson explained that the stairwell behind the Door was “an egress exit for 

the building” and:

would be a fire exit out of the building. This is one of the primary egress 

towers coming out of the building, and that door is the enclosure in 

addition, of course, to the walls that go all the way around. But that door 

completes the fire enclosure around the stair tower.
9

He explained that the Door must open outward. 

Mr. Robinson testified that the applicable codes, the Standard Building Code, the 

Standard Fire Code, and the Life Safety Code, require neither signage on the Door nor a 

glass panel in the Door. Mr. Robinson was asked about dimensions of windows in fire 

doors, and he stated:

Typically, in a fire door, it would be approximately two inches wide. 

That is so that when someone is trying to come to the door, trying to open 

the door to get out, they can’t take their hand - - as you would come down 

the stairs and you’re running and you push that door open, you don’t want 

their hand to go through the glass panel. That is extremely dangerous. So

you want that to be very narrow. Typically, it is two inches or less.

Mr. Robinson stated that one would have “a very small field of vision looking through” 

such a window. When questioned further, Mr. Robinson agreed that no code requires 

such windows to be two inches. He stated:

It could be 10 inches. . . . [I]t can be as large as you want to make it. 

The designers tend to and try to make it as narrow as possible so they don’t 

create injuries of people’s hands getting cut and arms getting cut. We’ve 

had many injuries because those windows were too wide. So today the 

standard is to make them very narrow, as I said earlier, so that a person 

cannot shove their hand through that window.

He further stated that although windows such as these are made to resist breaking, they 

are not impossible to break. 

He also explained that the field of view from a fire door window would be limited 

and stated:

[T]he purpose of putting windows in such doors is not to be able to see 

people. The purpose is to see whether there’s a fire or smoke on the other 

side of that door, because if you get - - if you are coming down and look 

through that glass and you see fire or smoke, you’re supposed to know “we 

do not open this door.”

Mr. Robinson agreed that the purpose of the Door is it’s a fire door, and he stated: “It is 

the enclosure that keeps the stair tower rated as a fire enclosure. . . . The purpose is to 
10

maintain the fire enclosure of that stair tower so that you have an enclosed area that is 

protected from the fire if there is a fire outside at that level.”

Mr. Robinson testified that the Door was not camouflaged but instead “stood out 

quite well in fact. You’ve got the light tan door with a dark frame wrapped around it and 

the brick panel. So there’s quite a bit of contrast.” He opined that the Door is not a 

dangerous condition, but agreed when asked that it was possible for it to be a dangerous 

condition even if it were code compliant.

After trial, the Trial Court entered its Memorandum and Judgment on February 2, 

2017, finding and holding, inter alia:

On October 7, 2013, Plaintiff, Linda Wimmer (hereinafter “Mrs. 

Wimmer”), visited her doctor at Erlanger. Mrs. Wimmer, who is presently 

age 74, was 71 at the time of the accident. At the time of the accident, she 

was living at a senior assisted living facility on Highway 58 and was 

transported to the hospital for her visit by a van. After the visit with her

doctor, she waited for the van in the lobby area of the hospital, as she had 

commonly done. The events of the accident are shown on a video, which 

was introduced as Exhibit 2, and depicted an open area in front of the 

facility with two sets of sliding doors. Mrs. Wimmer was waiting on the

inside of the inside doors with a door from a stairwell to her right. That 

door opened outward into the lobby area. While waiting, she was hit by the 

door and knocked down when a man in scrubs opened the door in 

somewhat of a hurry. The man in scrubs bent over her and asked her if she

was alright, and she said no. He ran off to get help, came back with help 

about 15 minutes later and then left. Mrs. Wimmer was taken by 

ambulance from the front door of Erlanger to the emergency room at 

Erlanger. The video of the accident showed that there was no place to sit 

next to the door, and Mrs. Wimmer had seen others standing there. She 

candidly testified that she “never realized there was a door there” until the 

accident, having not paid any attention to it. She testified that she stood by 

the door because she wanted to make sure that she saw the van when it 

arrived, there having been some tendency on the part of the van driver to 

drive off if he saw no one. She did not stand in the area between the sliding 

doors because it was cold that morning. It was undisputed that there was 

no sign on the door; nor was there any aperture in the door through which 

someone on either side of the door could see.

* * *
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Clarkson Lee Mason testified as an expert on behalf of Mrs. 

Wimmer, and he was qualified to so testify. Mr. Mason is a professional 

engineer and architectural consultant. On August 14, 2016, he inspected 

the door from both sides and also viewed the video of the accident. Mr. 

Mason had no opinion as to whether the door itself was dangerous. He did 

testify that he believed that a sign either on the outside or the inside of the 

door was necessary “based on common sense and experience.” He also 

testified that he felt that a glass window in the door was necessary to let 

someone on the inside of the door know that a person was outside and vice 

versa. While he said that such an opening would not have prevented the 

accident from happening, he testified it may have lessened the injury, but 

he did not say how. On cross-examination, he testified that the Southern 

Building Code does not require a window in the door, nor does the LifeSafety Code. He could not say more likely than not that the Plaintiff would 

have seen a sign or that the sign would have prevented the accident. He felt 

that the real problem was that the lack of a window made it impossible for 

someone coming out the door to see if someone was in front of the door. 

He offered no testimony on the issue of whether the absence of a sign or the 

absence of a window was the cause of the accident. On cross-examination, 

he did rely upon materials he had obtained the previous evening with 

respect to the requirement that “exit” signs be visible and that exit areas be 

free and unobstructed. . . . This testimony, however, is not applicable to 

this accident, because the door in question is posted with an exit sign, and 

there is no obstruction to the exit. The testimony of Mr. Mason cannot be 

the basis of a finding of liability.

James Robinson testified as a civil engineer with Bachelor’s and 

Master’s Degrees from Georgia Tech. He is familiar with the Building 

Code for the building as well as the Fire Code and Life-Safety Code. He 

testified that no code requires signage or a glass panel and that even if signs 

or glass panels had been there, the outcome would most likely not have 

been affected.

* * *

The issues in this case really boil down to causation. There has been no 

evidence that the location of the door constituted a defective design, nor is 

there evidence that the door itself is defective. Consequently, the only

defect upon which the Plaintiff can rely is the evidence that there should 

have been a sign or a glass window in the door. Even assuming that there 

was such a duty, the question then becomes whether there has been 
12

evidence of causation, namely, whether the accident would have been

avoided even with the existence of a sign or a glass window. The 

testimony of Mr. Mason was only that the door opened in such a way as to 

not cause a warning to the Plaintiff, not that the warning would have made 

it more likely than not that the accident would not have occurred. In fact, 

the Plaintiff herself 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. Thus, the only expert testimony to 

support a finding of liability is that the result was only remotely possible. 

This the Court cannot do.

Had liability been established in this case against Erlanger, however, 

the Court has no doubt but that an award would have resulted in the 

statutory maximum against Erlanger or $250,000, because of the size of the 

medical expenses and the injury involved. Because liability was not 

established, however, no damages will be awarded. For the foregoing 

reasons, judgment will be entered in favor of Erlanger. 

Plaintiff appeals to this Court.

Discussion

Although not stated exactly as such, Plaintiff raises one issue on appeal: whether 

the Trial Court erred in finding that Plaintiff failed to prove causation. Erlanger raises 

additional issues, which we restate as: 1) whether the Trial Court erred in failing to find 

that Erlanger was immune from suit pursuant to Tenn. Code Ann. § 29-20-101, et seq.; 2) 

whether the Trial Court erred in finding that Erlanger had a duty; and, 3) whether 

Plaintiff was at least 50% at fault for her injuries.

Our review is de novo upon the record, accompanied by a presumption of 

correctness of the findings of fact of the trial court, unless the preponderance of the 

evidence is otherwise. Tenn. R. App. P. 13(d); Kelly v. Kelly, 445 S.W.3d 685, 692 

(Tenn. 2014). A trial court’s conclusions of law are subject to a de novo review with no 

presumption of correctness. Kelly v. Kelly, 445 S.W.3d at 692.

As it is dispositive, we first will address Erlanger’s issue regarding whether the Trial 

Court erred in failing to find that Erlanger was immune from suit pursuant to Tenn. Code 

Ann. § 29-20-101, et seq., the Tennessee Governmental Tort Liability Act (“GTLA”). 

We note that while no specific proof was presented at trial regarding whether Erlanger 

was a governmental entity pursuant to the GTLA at the time of the Accident, and the 

Trial Court made no specific findings regarding whether Erlanger was or was not a 
13

governmental entity entitled to immunity under the GTLA, the parties and the Trial Court

clearly appear to have agreed that Erlanger was a governmental entity and that the GTLA 

applied to this suit, and the case was tried as such. Erlanger asserted in its answer to 

Plaintiff’s complaint that it was a governmental entity and that the GTLA applied to this 

case. At trial during opening statements, Plaintiff’s attorney stated: “The real problem 

that I foresee is that - - unfortunate that the hospital only has the governmental limits,” a 

clear reference to the statutory limits provided in the GTLA. After the close of proof at 

trial, Erlanger’s attorney raised a question with regard to the statutory limit under the 

GTLA and how damages would be calculated if there were a finding of comparative 

fault, and a brief discussion ensued. The Trial Court also made reference in its judgment 

to the fact that if liability had been established an award would have been subject to the 

statutory maximum, another clear reference to the statutory maximum contained in the 

GTLA. Given the tacit agreement that Erlanger was a governmental entity and that the

GTLA applied to this suit, Erlanger was immune from suit unless Plaintiff proved that 

immunity was removed pursuant to the GTLA.

We, thus, consider whether Erlanger’s immunity was removed. Erlanger’s 

immunity under the GTLA could be removed pursuant to section 29-20-204 of the 

GTLA, which provides:

29-20-204. Removal of immunity for injury from dangerous structures 

– Exception – Notice required.

(a) Immunity from suit of a governmental entity is removed for any injury 

caused by the dangerous or defective condition of any public building, 

structure, dam, reservoir or other public improvement owned and controlled 

by such governmental entity.

(b) Immunity is not removed for latent defective conditions, nor shall this 

section apply unless constructive and/or actual notice to the governmental 

entity of such condition be alleged and proved in addition to the procedural 

notice required by § 29-20-302 [repealed].

Tenn. Code Ann. § 29-20-204 (2012). 

In its judgment, the Trial Court specifically found that: “There has been no 

evidence that the location of the door constituted a defective design, nor is there evidence 

that the door itself is defective.” The evidence in the record on appeal does not 

preponderate against these findings. Furthermore, the record on appeal is devoid of 

evidence showing that if the Door were considered a latent defective condition that 

Erlanger had constructive or actual notice of the defect. The record on appeal contains no 

evidence of any accidents or incidents involving the Door other than the Accident at 
14

issue. Nor did Plaintiff produce any other evidence showing constructive or actual notice 

of a defect. As Plaintiff failed to prove that the Door constituted a dangerous or defective 

condition, and also failed to prove that Erlanger had actual or constructive notice that the 

Door constituted a latent defect, immunity from suit was not removed by Tenn. Code 

Ann. § 29-20-204. 

Erlanger’s immunity under the GTLA also could have been removed pursuant to 

either Tenn. Code Ann. § 29-20-202 or Tenn. Code Ann. § 29-20-205. In pertinent part, 

§ 29-20-202 provides for removal of immunity for “negligent operation by any employee 

of . . . other equipment while in the scope of employment.” Tenn. Code Ann. § 29-20-

202 (2012). The pertinent part of § 29-20-205 provides that immunity “is removed for 

injury proximately caused by a negligent act or omission of any employee within the 

scope of his employment . . . ,” except in specific circumstances not applicable to the 

instant case. Tenn. Code Ann. § 29-20-205 (2012). 

A careful and thorough review of the record on appeal shows that Plaintiff failed 

to prove any action by an employee of Erlanger acting within the course and scope of 

employment. Although Plaintiff testified that she believed that the person who opened 

the Door was an Erlanger employee because he was wearing scrubs, this assertion is 

simply speculation. The identity of the person who opened the Door was not proven at 

trial, and it would be pure speculation to assume that person was an Erlanger employee 

acting within the scope of his employment. The record on appeal is devoid of evidence 

supporting a finding of removal of immunity pursuant to either Tenn. Code Ann. § 29-20-

202 or Tenn. Code Ann. § 29-20-205. 

Plaintiff failed to prove that Erlanger’s immunity was removed under the GTLA. 

Given this, the inquiry should have ended and Erlanger found immune from suit. The 

Trial Court, however, continued its analysis and found that Plaintiff had not proven 

causation. Given this, we will consider Plaintiff’s issue regarding whether the Trial 

Court erred in finding that Plaintiff failed to prove causation. 

Specifically, with regard to causation the Trial Court found and held:

The issues in this case really boil down to causation. There has been no 

evidence that the location of the door constituted a defective design, nor is 

there evidence that the door itself is defective. Consequently, the only 

defect upon which the Plaintiff can rely is the evidence that there should 

have been a sign or a glass window in the door. Even assuming that there 

was such a duty, the question then becomes whether there has been 

evidence of causation, namely, whether the accident would have been 

avoided even with the existence of a sign or a glass window. The 
15

testimony of Mr. Mason was only that the door opened in such a way as to 

not cause a warning to the Plaintiff, not that the warning would have made 

it more likely than not that the accident would not have occurred. In fact, 

the Plaintiff herself 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. Thus, the only expert testimony to 

support a finding of liability is that the result was only remotely possible. 

This the Court cannot do.

The evidence in the record on appeal, as discussed more fully above, does not 

preponderate against these findings made by the Trial Court. Given these findings, we 

find no error in the Trial Court’s reaching the conclusion that Plaintiff failed to prove 

causation even though it was unnecessary to reach a conclusion as to causation.

We affirm the Trial Court’s February 2, 2017 judgment. Our resolution of the two 

issues discussed above pretermits the necessity of considering Erlanger’s remaining two 

issues.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the 

Trial Court for collection of the costs below. The costs on appeal are assessed against the 

appellant, Linda Wimmer, and her surety.

_________________________________ 

D. MICHAEL SWINEY, CHIEF JUDGE