IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 20, 2018 Session

CHRISTOPHER CREECH, ET AL. v. RMRTN CHATT, LLC

Appeal from the Circuit Court for Dyer County

No. 2014-CV-56 William B. Acree, Senior Judge

___________________________________

No. W2017-01541-COA-R3-CV

___________________________________

This is a premises liability case. Appellants sued Appellee, building owner, for 

negligence alleging that his injuries from a fall were due to an unsafe ladder on which he 

was standing to access Appellee’s HVAC units. Appellee denied all allegations and

asserted comparative fault by one of the Appellants, Christopher Creech. After various 

pre-trial motions, the case proceeded to trial. At the close of trial, the trial court denied 

both motions for directed verdict. The jury returned a verdict in favor of Appellee. 

Appellants appeal. Discerning no error, we affirm and remand.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

James Bryan Moseley, Murfreesboro, Tennessee, for the appellants, Christopher Creech, 

and Liz Creech.

Alaric A. Henry, Elizabeth Roderick, Chattanooga, Tennessee, and Christopher L.

Vescovo, Memphis, Tennessee, for the appellee, RMRTN CHATT, LLC.

OPINION

I. Background

RMRTN Chatt, LLC (“Appellee”) owns a building, which it leased to Toys-R-Us.

1

 

Toys-R-Us contracted with Appellant Christopher Creech (together with his wife Liz 

Creech, “Appellants”), for HVAC work on the building. Mr. Creech was working on the 

 

1

Toys-R-Us is not a party to this appeal.

09/11/2018
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HVAC unit at Appellee’s building when the roof-access ladder, on which he was 

standing, detached from Appellee’s building, causing Mr. Creech to fall and sustain 

injuries. The crux of Appellants’ argument is that Appellee is at fault for Mr. Creech’s 

injuries because it failed to properly inspect and maintain its ladder in good condition, 

thus resulting in the ladder being unsafe and unreasonably dangerous. At trial, Appellee 

presented evidence that it performed the proper inspections on the ladder and did not find 

any defects. Appellee also asserted that the actions of Mr. Creech were the proximate 

and legal cause of his injury. Specifically, Appellee presented evidence that Mr. Creech 

was familiar with the store and its roof-access ladder because he had previously inspected 

the HVAC units before beginning work. In fact, Mr. Creech testified that he had used the 

ladder several times the day of the accident and had not noticed any problem with the 

ladder.

On August 14, 2014, Appellants filed an Amended Complaint in the Circuit Court 

of Dyer County (“trial court”), alleging that Appellee negligently maintained its ladder

and that Appellee’s negligence was the direct and proximate cause of Mr. Creech’s 

injuries.2 On October 17, 2014, Appellee filed an answer, in which it denied liability and

pled three affirmative defenses: (1) non-party fault; (2) Mr. Creech’s comparative fault; 

and (3) negligence per se stemming from Mr. Creech’s alleged violation of three 

Occupational Safety and Health Administration (“OSHA”) regulations, 29 C.F.R. §§ 

1926.10, 1926.20, and 1926.501.3 On Appellants’ motion for summary judgment, the 

trial court dismissed Appellee’s non-party fault affirmative defense. The trial court 

denied summary judgment as to the two remaining affirmative defenses. Although, at 

trial, Appellee presented evidence regarding the OSHA violations, the trial court

ultimately refused to instruct the jury as to Appellee’s negligence per se defense and Mr. 

Creech’s alleged violations of certain OSHA regulations. 

Prior to trial, Appellants filed a motion in limine, asking the trial court to exclude 

Appellee’s expert, Dr. Harold Deatherage, a licensed professional engineer. Appellants 

sought to exclude Dr. Deatherage’s testimony in toto. Alternatively, Appellants sought to 

limit certain opinion testimony, which it anticipated Dr. Deatherage would offer at trial. 

The parties ultimately agreed that Dr. Deatherage was qualified to give expert testimony. 

Accordingly, the trial court allowed Dr. Deatherage’s testimony but reserved ruling on 

Appellants’ motion regarding the specific scope of his expert testimony. 

Concerning Appellants’ vocational expert, John McKinney, the trial court initially 

allowed him to testify regarding Mr. Creech’s health after the accident, the impact the 

 

2 Appellants filed a Second Amended Complaint on January 25, 2017, the day the trial began, 

wherein Appellants incorporated their previous complaints and requested $6.75 million in compensatory 

damages.

3 These regulations apply to construction and/or repair contracts and require an employer 

contractor (Mr. Creech) to maintain safe working conditions for his or her employees (Mr. Creech’s 

employees).
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accident had on Mr. Creech’s ability to continue working, and that Mr. Creech was 100% 

disabled because of the accident. However, Appellee objected that no proper foundation

was laid concerning Mr. McKinney’s testimony about Mr. Creech’s condition. The trial 

court sustained this objection and granted Appellee’s request for a curative jury 

instruction striking all of Mr. McKinney’s testimony and instructing the jury to not 

consider the testimony in its valuation of the case.

Both parties filed proposed jury instructions requesting certain special instructions, 

see infra. Relevant to this appeal, the trial court denied three of Appellants’ proposed 

special instructions regarding a property owner’s duty to use reasonable care and 

diligence in maintaining its property in a safe condition. In denying Appellants’ requests, 

the trial court found that the special instructions were unnecessary because the Tennessee 

Pattern Jury Instructions sufficiently addressed the information requested in the special 

instructions. 

The case was tried over six days. At the conclusion of all proof, Appellants 

moved for a directed verdict on Appellee’s comparative fault affirmative defense. The 

trial court denied the motion and allowed the question of Mr. Creech’s comparative fault 

to go to the jury. On January 31, 2017, the jury returned a verdict in favor of Appellee. 

The jury verdict form shows that, on the question, “Do you find the defendant to be at 

fault?,” the jury answered “No.” By order of February 23, 2017, the trial court entered

judgment in favor of Appellee. Appellants filed a Motion for New Trial, which the trial 

court denied by order of July 10, 2017.

II. Issues

Appellants raise four issues for review, which we restate as follows:

1. Whether the trial court erred in denying Appellants’ motion for partial summary 

judgment as to Appellee’s affirmative defenses of Mr. Creech’s comparative fault 

and negligence per se as to Mr. Creech’s alleged OSHA violations. 

2. Whether the trial court erred in its rulings concerning the parties’ respective 

experts, Dr. Harold Deatherage and John McKinney.

3. Whether the trial court erred in denying Appellants’ motion for directed verdict.

4. Whether the trial court erred when it refused to issue Appellants’ special jury 

instructions.

III. Standard of Review

The standard of review when examining a jury verdict approved by the trial court 
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is whether there is any material evidence to support the verdict. Tenn. R. App. P. 13(d); 

Cooper v. Tabb, 347 S.W.3d 207, 217 (Tenn. Ct. App. 2010). To determine whether

material evidence supports the jury’s verdict, this Court must: “(1) take the strongest 

legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all 

evidence that supports the verdict; (3) allow all reasonable inferences to sustain the 

verdict; and (4) discard all [countervailing] evidence.” Barnes v. Goodyear Tire & 

Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000) (citing Crabtree Masonry Co., Inc. v. C 

& R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)).

IV. Analysis

A. Partial Summary Judgment

Appellants first argue that the trial court erred in denying their motion for partial 

summary judgment as to Appellee’s affirmative defenses. As discussed above, the trial 

court granted Appellants’ motion regarding the defense of non-party fault, but denied the 

motion regarding the defenses of Mr. Creech’s comparative fault and negligence per se. 

Nonetheless, the negligence per se defense was effectively dismissed as the trial court 

declined to instruct the jury regarding any OSHA violations by Mr. Creech. As to the 

remaining defense of Mr. Creech’s comparative fault, following the denial of Appellants’ 

partial summary judgment motion as to this defense, the trial court allowed the jury to 

consider and decide this issue. It is well settled that a “trial court’s denial of the summary 

judgment [being] predicated upon the existence of a genuine issue of fact . . . is not 

reviewable where there has been a judgment rendered after a trial on the merits of the 

case.” Mullins v. Precision Rubber Prod. Corp., 671 S.W.2d 496, 498 (Tenn. Ct. App. 

1984) (citing Tate v. Monroe County, 578 S.W.2d 642, 644 (Tenn. Ct. App. 1978). 

Accordingly, we will not address the question of whether the trial court erred in its ruling 

on the motion for partial summary judgment.

B. Expert Witnesses

We review a trial court’s decision regarding the admissibility of expert witness

testimony under an abuse of discretion standard. As discussed by the Tennessee Supreme

Court: 

Generally, questions pertaining to the qualifications, admissibility, 

relevancy, and competency of expert testimony are matters left to the trial 

court’s discretion. McDaniel v. CSX Transportation, Inc., 955 S.W.2d 

257, 263 (Tenn. 1997). We may not overturn the trial court’s ruling 

admitting or excluding expert testimony unless the trial court abused its 

discretion. Id. at 263-64. A trial court abuses its discretion if it applies an 

incorrect legal standard or reaches an illogical or unreasonable decision that 
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causes an injustice to the complaining party. State v. Stevens, 78 S.W.3d 

817, 832 (Tenn. 2002).

Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005). In discussing the 

Brown decision, this Court has explained:

The Court in Brown noted that the “objective” of the gatekeeping 

function is “to ensure that ‘an expert, whether basing testimony upon 

professional studies or personal experience, employs in the courtroom the 

same level of intellectual rigor that characterizes the practice of an expert in 

the relevant field.’” Id. at 275 (quoting Kumbo Tire Co. v. Carmichael, 

526 U.S. 137, 152 (1999)). The Brown Court emphasized that, once 

admitted, the testimony of the expert “will be subject to vigorous crossexamination and countervailing proof” and that “the resolution of 

legitimate but competing expert opinions are matters entrusted to the trier 

of fact.” Brown, 181 S.W.3d at 275 (citations omitted). Based on these 

considerations, the Court in Brown determined that the trial court had 

abused its discretion in excluding the testimony of the plaintiff’s proffered 

experts. Id. at 281.

Subsequent Tennessee Supreme Court decisions applying Brown

have likewise emphasized that an expert’s testimony will be subjected to 

forceful cross-examination, indicating that trial courts should be reluctant to 

exclude the testimony of an expert because of his or her opinion. For 

example, in State v. Scott, 275 S.W.3d 395 (Tenn. 2009), the Court noted 

that the trial court’s role as gatekeeper “is not unconstrained” and stated 

that a party proffering the testimony of an expert “need not establish that 

the expert testimony is correct, only that the expert testimony ‘rests upon 

‘good grounds.’’” Id. at 404 (citations omitted). See also Shipley v. 

Williams, 350 S.W.3d 527, 559-60 (Tenn. 2011).

Wells v. Illinois Cent. R. Co., No. W2010-01223-COA-R3-CV, 2011 WL 6777921, at *7 

(Tenn. Ct. App. Dec. 22, 2011), perm. app. denied (Tenn. Aug. 16, 2012). With the 

foregoing in mind, we turn to review the trial court’s rulings as to Dr. Deatherage and 

Mr. McKinney.

1. Dr. Harold Deatherage

As noted above, Appellants agreed that Dr. Deatherage was qualified to give 

expert testimony. However, on June 1, 2016, Appellants filed a motion in limine, in 

which they asked the trial court to limit the scope of his testimony. Specifically, 

Appellants argued that Dr. Deatherage did not have a factual basis for his opinion “that 

the ladder would have been noticeably loose prior to failure.” Appellants claim that Dr. 
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Deatherage’s opinions failed the McDaniel test in that they were unsupported and 

unreliable. Specifically, Appellants assert that Dr. Deatherage: (1) did not perform any 

testing to reach his opinion; (2) did not rely on testing performed by others in reaching 

his opinion; (3) did not rely on scientific literature or authority in reaching his opinion; 

and that (4) his opinion only applied to this litigation.4 By order of June 30, 2016, the 

trial court reserved ruling on the scope of Dr. Deatherage’s testimony.

Having reserved ruling on Appellants’ motion in limine to limit Dr. Deatherage’s 

testimony, it was incumbent upon Appellants to lodge timely specific objections during 

the trial concerning the substance and/or scope of Dr. Deatherage’s testimony. Tenn. R. 

Evid. 103.5 The record shows that, during Dr. Deatherage’s testimony, Appellants 

lodged three objections, which we review in turn. 

 

4 The McDaniel factors are:

(1) whether scientific evidence has been tested and the methodology with which it has 

been tested; (2) whether the evidence has been subjected to peer review or publication; 

(3) whether a potential rate of error is known; (4) whether ... the evidence is generally 

accepted in the scientific community; and (5) whether the expert’s research in the field 

has been conducted independent of litigation.

McDaniel, 955 S.W.2d at 265.

Importantly, we note that the McDaniel factors provide a non-exclusive list of factors. 

McDaniel, 955 S.W.2d at 265. Furthermore, in Brown, the Tennessee Supreme Court “identified other

nondefinitive factors that a trial court may consider in assessing the reliability of an expert’s 

methodology.” Brown, 181 S.W.3d at 274. These factors include: (1) the expert’s qualifications for 

testifying on the subject at issue; and (2) the connection between the expert’s knowledge and the basis for 

the expert’s opinion. Id. at 274-75. With regards to the second factor, the Brown Court explained that it 

is 

important particularly when the expert’s opinions are based upon experience or 

observations as these areas are not easily verifiable. Stevens, 78 S.W.3d at 834. A trial 

court, however, may conclude that an expert’s opinions are reliable “if the expert’s 

conclusions are sufficiently straightforward and supported by a ‘rational explanation 

which reasonable [persons] could accept as more correct than not correct.’” Id. (quoting 

Wood v. Stihl, 705 F.2d 1101, 1107-08 (9th Cir. 1983)).

Brown, 181 S.W.3d at 275.

5

Tennessee Rule of Evidence 103 provides in part:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits 

or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or

motion to strike appears of record, stating the specific ground of objection if the 

specific ground was not apparent from the context . . . 
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Appellants first objected to Dr. Deatherage’s testimony as follows: 

A: Then after a period of time, I acquired a construction company or two 

other guys and I did and we ran that company until 1985. And when the 

banks failed and the economy in Knoxville went in the tank, why I went 

back to school and got my PhD in civil engineering and had not intended to 

stay in Knoxville but, the job opportunity was there to stay and teach and so 

I did so. And I was responsible for the construction program at the 

University of Tennessee.

Appellants’ Attorney: I don’t mean to interrupt, but we can stipulate to 

his qualifications. If that speeds things up a little bit. We do have an issue 

with some foundational issues with opinions that we had a motion for, but 

qualification-wise, we don’t have an issue with that.

Appellants’ second objection to Dr. Deatherage’s testimony was similar to the 

first:

Q: Your Honor, at this time I’d tender Dr. Deatherage as an expert—

professional engineer, structural engineer and forensic engineer.

Appellants’ Attorney: Again, Your Honor, we don’t have any objection 

to his qualifications. We do have an objection to foundation for some of 

the opinions he intends to give.

The Court: I understand.

These two objections were made during portions of Dr. Deatherage’s testimony where he 

was merely stating his qualifications, which Appellants conceded were sufficient to allow 

Dr. Deatherage to give expert testimony. At this point in Dr. Deatherage’s testimony, 

objection to foundation for his opinions is neither timely nor specific. The objection to 

foundation concerning opinions Dr. Deatherage “intends to give” is premature until such 

testimony is offered. Accordingly, we cannot conclude that the trial court erred in 

overruling these objections at the time they were made.

Appellants’ third objection is more specific:

Q: In terms of the reviewing of the data and the access seen in this 

particular case, what – is there an OSHA requirement as it relates to leaving 

 

Tenn. R. Evid. 103(a)(1).
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the latch or hatch door open to the roof that employees are supposed to 

follow?

Appellants’ Attorney: Your Honor, could we approach?

(Whereupon, bench conference was held, to-wit:)

Appellants’ Attorney: This is one of the issues we raised in our motion in 

limine about him giving some kind of opinion as to causation. There’s no 

relevance to the hatch being open unless it actually caused the ladder failure 

or caused some type of injury to Mr. Creech. And when we took his 

deposition he had to admit that he’s not giving causation opinion about any 

medical issue or anything like that. And he’s admitted that the hatch being 

open didn’t cause this ladder failure.

Appellee’s Attorney: Your Honor, a couple of things from what evidence 

has been in the record. First of all, there’s a bunch of evidence in the 

record from the medical testimony about him having to twist and turn, 

about him being in an awkward position because he’s afraid of falling in. 

Plus, in terms of general safety issues it is a general safety issue that’s 

reflective of this, you know, company relating to this and he specifically 

has said in the record about being concerned about falling down that hole.

The Court: I think your question was whether or not having that hatch 

open is an OSHA violation.

Appellee’s Attorney: I think if there’s an OSHA application that applies 

for that hatch being open. I think that was - -

The Court: Well, the last – the last expert witness testified that it was.

Appellants’ Attorney: So then it’s cumulative, I suppose.

***

The Court: . . . Objection overruled. He can – he can testify as to what the 

regulation has to say about that.

(Whereupon, bench conference was concluded.)

Q: Dr. Deatherage, what does the regulation have to say about this open 

roof hatch?
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A: You want me to read it?

Q: Sure.

A: “Each employee on a walking or working surface shall be protected 

from falling through holes, including skylights, more than six foot above 

lower levels by personal fall [arrest] system[s], covers, or [guardrails]

erected around such holes.” So you can’t have an open opening on a 

walking surface or a roof without protecting it. One of the way[s] to 

protect it is to close the lid or the obvious way to protect it I guess is to 

close the lid.

The substance of Appellants’ third objection is whether leaving a hatch door open, 

which would violate OSHA regulations, was relevant to the ladder falling. Accordingly, 

the objectionable testimony goes directly to Appellee’s defense of negligence per se. As 

discussed above, the jury was never charged concerning this defense. Thus, even if we 

assume, arguendo, that the trial court should have sustained the objection, any error was 

cured by the trial court’s refusal to instruct the jury as to Appellee’s negligence per se

defense. In this regard, any error concerning the trial court’s ruling on the objection 

would be harmless. Tenn. R. App. P. 36(b) (“A final judgment from which relief is 

available and otherwise appropriate shall not be set aside unless, considering the whole 

record, error involving a substantial right more probably than not affected the judgment 

or would result in prejudice to the judicial process.”).

2. John McKinney

As noted above, Mr. McKinney testified that, as a result of the accident, Mr. 

Creech is 100% disabled and unemployable. On Appellee’s objection to this testimony, 

the trial court ruled that Mr. McKinney did not lay a proper foundation for his conclusion 

concerning Mr. Creech’s disability and instructed the jury to disregard all of Mr. 

McKinney’s testimony. 

Of course, Mr. McKinney’s testimony concerning Mr. Creech’s disability is 

relevant to the issue of compensation only, not liability. Here, the jury ultimately found 

no liability on Appellee’s part. Accordingly, even if we allow, arguendo, that the trial 

court erred in instructing the jury to ignore this portion of Mr. McKinney’s testimony, 

such error would be harmless in view of the jury’s ultimate verdict. Tenn. R. App. P. 

36(b). 

C. Directed Verdict

At the close of trial, Appellants moved for directed verdict.

6

 Tennessee Rule of 

 

6 Appellants moved for directed verdict on negligence per se even though the trial court explained 
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Civil Procedure 50.01 provides: 

A motion for a directed verdict may be made at the close of the evidence 

offered by an opposing party or at the close of the case. The court shall 

reserve ruling until all parties alleging fault against any other party have 

presented their respective proof-in-chief. A party who moves for a directed 

verdict at the close of the evidence offered by an opponent may offer 

evidence in the event that the motion is not granted, without having 

reserved the right so to do and to the same extent as if the motion had not 

been made. A motion for a directed verdict which is not granted is not a 

waiver of trial by jury even though all parties to the action have moved for 

directed verdicts. The order of the court granting a motion for a directed 

verdict is effective without any assent of the jury.

The trial court denied the motion, and Appellants appeal. From our review, Appellants 

did not raise the denial of the motion for directed verdict in their motion for new trial. 

Rule 3 of the Tennessee Rules of Appellate Procedure provides, in part, that

in all cases tried by a jury, no issue presented for review shall be predicated 

upon error in the admission or exclusion of evidence, jury instructions 

granted or refused, misconduct of jurors, parties or counsel, or other action

committed or occurring during the trial of the case, or other ground upon 

which a new trial is sought, unless the same was specifically stated in a 

motion for a new trial; otherwise such issues will be treated as waived. 

Tenn. R. App. P. 3(e) (emphasis added). This Court faced a similar scenario in Mires v. 

Clay, 3 S.W.3d 463, 468 (Tenn. Ct. App. 1999). In Mires, a defendant moved for 

directed verdict at the close of plaintiff’s proof and renewed the motion at the close of all 

proof. However, the defendant failed to file a post-trial motion addressing the denial of 

the motion for directed verdict. In Mires, we explained: 

This Court has previously addressed this issue in Cortez v. Alutech, Inc., 

941 S.W.2d 891 (Tenn. App. 1996). In Cortez, we noted that when the 

alleged error is the failure of the trial court to grant a directed verdict, either 

a motion for a new trial or a post-trial motion seeking entry of judgment in 

accordance with a motion for directed verdict made at trial (judgment 

n.o.v.) is sufficient to preserve the issue for appeal. Id. at 894-95. Failure to 

file either of these post-trial motions, however, denies “the trial judge the 

opportunity to consider or reconsider alleged errors committed during the 

course of trial” and precludes appellate review of that issue. Id. at 894-96. 

The rationale for this holding is supported by Rule 36(a) T.R.A.P. which 

 

it was not charging negligence per se to the jury.
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provides that “[n]othing in this rule shall be construed as requiring relief be 

granted to a party . . . who failed to take whatever action was reasonably 

available to prevent or nullify the harmful effect of an error.”

Mires v. Clay, 3 S.W.3d 463, 468 (Tenn. Ct. App. 1999). Having failed to raise the 

denial of their motion for directed verdict in its motion for new trial, Appellants waived 

this issue. Tenn. R. App. P. 3(e).

D. Jury Instruction

Appellants also appeal the trial court’s denial of three of their proposed special 

jury instructions. The special instructions concerned the duty of a property owner to keep 

its property in a reasonably safe condition. “Whether a jury instruction is erroneous is a 

question of law and is[,] therefore[,] subject to de novo review with no presumption of 

correctness.” Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011) (citing 

Solomon v. First Am. National Bank of Nashville, 774 S.W.2d 935, 940 (Tenn. Ct. App.

1989). Regarding jury instructions, this Court has previously explained: 

It is the trial court’s duty to instruct the jury on “every factual issue and 

theory of the case presented by the parties.” Ricketts v. Robinson, 169 

S.W.3d 642, 646 (Tenn. Ct. App. 2004) (citing Cole v. Woods, 548 S.W.2d 

640, 642 (Tenn. 1977)). This Court reviews the jury charge in its entirety to 

determine whether the trial judge committed reversible error. Jury 

instructions are not measured against the standard of perfection. The charge 

will not be invalidated if it “fairly defines the legal issues involved in the 

case and does not mislead the jury.” Id. Furthermore, a particular 

instruction must be considered in the context of the entire charge. Id. (citing 

City of Johnson City v. Outdoor West, Inc., 947 S.W.2d 855, 858 (Tenn.

Ct. App. 1996)). Whether a jury instruction is erroneous is a question of 

law and is, therefore, subject to de novo review with no presumption of 

correctness. Solomon v. First Am. National Bank of Nashville, 774 

S.W.2d 935, 940 (Tenn. Ct. App. 1989). The legitimacy of a jury’s verdict 

is dependent on the accuracy of the trial court’s instructions, which are the 

sole source of the legal principles required for the jury’s deliberations. 

Therefore, a trial court is under a duty to impart “substantially accurate 

instructions concerning the law applicable to the matters at issue.” Hensley 

v. CSX Transp., Inc., 310 S.W.3d 824, 833 (Tenn. Ct. App. 2009) (quoting 

Bara v. Clarksville Mem’l Health Sys., Inc., 104 S.W.3d 1, 3-4 (Tenn. Ct.

App. 2002)). When considering whether a trial court committed prejudicial 

error in a jury instruction, it is our duty to review the charge in its entirety 

and to consider it as a whole. The instruction will not be invalidated if it 

“fairly defines the legal issues involved in the case and does not mislead the 

jury.” Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn.
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1992). The judgment of a trial court will not be set aside based on an 

erroneous jury instruction unless it appears that the erroneous instruction 

more probably than not affected the judgment of the jury. Tenn. R. App. P. 

36(b); Gorman v. Earhart, 876 S.W.2d 832, 836 (Tenn. 1994).

Monypeny, No. W2014-00656-COA-R3-CV, 2015 WL 1541333, at *19 (Tenn. Ct. App. 

Apr. 1, 2015). 

Here, Appellants requested the following special jury instructions: 

Special Jury Instruction No. 1:

A property owner has a duty to use reasonable care to inspect its property to 

discover dangerous or unsafe conditions. An [sic] property owner also has

a duty to use reasonable care and diligence in maintaining its property in a 

safe condition. Likewise, a property owner owes a duty to contractors and 

employees of contractors to see that the employee has a reasonably safe 

place in which to work.

The trial court denied Appellants’ instruction, stating:

THE COURT: The plaintiff’s special request number 1 is denied. I think 

that the, I think that the law will be adequately covered under the pattern 

jury instructions and the charge that I’ve prepared. Also, I think it’s 

cumulative – that the danger [with] cumulative instruction is that it tends to 

over emphasi[ze] one particular aspect of the case, which I think this will 

happen. 

The second special jury instruction Appellants requested states:

Special Jury Instruction No. 2:

The duty of the owner or occupier of the land arises from a position of 

control which the person in possession occupies; he is the person normally 

best able to prevent any harm to others.

The trial court denied Appellants’ second proposed instruction, stating:

THE COURT: [Appellee’s counsel] has been arguing throughout the case 

that the person best able to prevent any harm in this case was Mr. Creech 

himself because he was the last one on the ladder. I’m not stating, stating 

that to say I agree with him or I don’t agree with him, but I don’t think 
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under the circumstances it would be an appropriate charge. I’m not going 

to charge that one either.

The final special jury instruction Appellants requested states:

Special Jury Instruction No. 3:

A property owner who either knew or should have known of a dangerous 

condition on his premises has a duty to either repair or remove the 

condition or help others avoid injury by warning them of the condition if 

the condition cannot reasonably be removed or repaired.

The trial court denied Appellants’ final proposed instruction, stating:

THE COURT: Instruction says in part, “to recover from an injury caused 

by an unsafe condition of the property, the plaintiff must show that the 

defendant either created the unsafe condition or knew of it long enough to 

have corrected it or given adequate warning of it before the plaintiff’s 

injury” and so forth and so on. I think that’s covered it. Number 3 is 

denied.

Concerning a property owner’s duty, the Tennessee Civil Pattern Jury Instructions 

(“T.P.I.”) provide:

T.P.I.—CIVIL 9.01 Duty of Owners, Occupants or Lessors of Premises

One who owns, occupies or leases property is under a duty to use ordinary 

care, which is the care that ordinarily careful persons would use to avoid 

injury to themselves or others under the same or similar circumstances. 

There is no duty to guarantee the safety of those entering upon the property.

You should consider all the surrounding circumstances in deciding if the 

defendant used such care.

T.P.I.—CIVIL 9.01 Duty of Owners, Occupants or Lessors of Premises, Tenn. Prac. 

Pattern Jury Instr. T.P.I.-Civil 9.01 (2017 ed.).

T.P.I.—CIVIL 9.02 Premises—Unsafe Condition

To recover for an injury caused by an unsafe condition of the property, the 

plaintiff must show that the defendant either created the unsafe condition or 

knew of it long enough to have corrected it [or given adequate warning of 

it] before plaintiff’s injury, or that the unsafe condition existed long enough 
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that the defendant, using ordinary care, should have discovered and 

corrected [or adequately warned of] the unsafe condition. An unsafe 

condition is a condition which creates an unreasonable risk of harm.

T.P.I.—CIVIL 9.02 Premises—Unsafe Condition, Tenn. Prac. Pattern Jury Instr. T.P.I.-

Civil 9.02 (2017 ed.). 

“When considering whether a trial court committed prejudicial error in a jury 

instruction, it is our duty to review the charge in its entirety and to consider it as a 

whole.” Monypeny, 2015 WL 1541333, at *19. Trial courts may give special 

instructions but “need not give a special instruction whose substance is already covered 

in the general charge.” Mitchell v. Smith, 779 S.W.2d 384, 390-91 (Tenn. Ct. App. 

1989) (citing Jack M. Bass & Co. v. Parker, 343 S.W.2d 879, 884 (1961); Austin v. City 

of Memphis, 684 S.W.2d 624, 636 (Tenn. Ct. App. 1984)). Having denied these three 

proposed instructions, the trial court ultimately instructed the jury on the issue of duty as 

follows:

In deciding this case you must determine the fault, if any, of each of 

the parties. If you find more than one party . . . [is] at fault, you would then 

compare the fault of both parties. To do this you need to know the 

definition of fault. 

A party is at fault if you find the party was negligent and that the 

negligence was the cause in fact, the legal cause of the injury or damage 

which a claim has made.

Fault has two parts: Negligence and causation. Negligence is the 

failure to use reasonable care. It is either doing something that a reasonably 

careful person would not do or the plaintiff would do, something that a 

reasonably careful person would do, under circumstances similar to those 

shown by the evidence.

The mere happening of an injury or accident does not in and of itself 

prove negligence. A person may assume that every other person will use 

reasonable care unless the circumstances indicate the contrary to a 

reasonably careful person.

One who owns, occupies or leases property is under a duty to use 

ordinary care, which is the care that an ordinary, ordinarily careful person 

would use to avoid injury to themselves or others of the same or similar 

circumstances. There is no duty to guarantee the safety of those on your 

property.
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You should consider all of the surrounding circumstances and decide 

if the defendant used such care.

To recover for an injury caused by an unsafe condition of a property, 

the plaintiff must show that the defendant either created the unsafe 

condition or knew of it long enough to have corrected it or given adequate 

warning of it before the plaintiff’s injury or that the unsafe condition 

existed long enough that the defendant using ordinary care should have 

discovered and corrected it or adequately warned of the unsafe condition. 

An unsafe condition is a condition which creates an unreasonable risk of 

harm.

The gravamen of this lawsuit is negligence, and the primary focus of the proposed 

special jury instructions concerns the first element of negligence, i.e. the duty of care a 

property owner owes to keep its premises in a reasonably safe condition. The jury 

instructions the trial court gave are essentially verbatim recitations of T.P.I. 9.01 and 

9.02. The requested special jury instructions are cumulative of the information set out in 

the Pattern Jury Instructions. As such, the special jury instructions were unnecessary to 

the jury’s understanding and application of the relevant law. Therefore, we cannot 

conclude that the trial court erred in denying the requested special instruction.

V. Conclusion

For the foregoing reasons, we affirm the trial court’s rulings and judgment in this 

case. The case is remanded for such further proceedings as may be necessary and are 

consistent with this opinion. Costs of the appeal are assessed against Appellants, 

Christopher Creech, Liz Creech, and their surety, for all of which execution may issue if 

necessary.

_________________________________

KENNY ARMSTRONG, JUDGE