### IN THE SUPREME COURT OF TENNESSEE AT JACKSON GEORGIA CROSS, ET AL 

### . v. CITY OF MEMPHIS
Appeal from the Circuit Court for Shelby County No. 72984-6 T.D. George H. Brown, Jr., Judge

No. W 1998-00091-SC-R11-CV

—Decided June 20, 2000

This is an appeal from the Circuit Court for Shelby County which, following a bench trial, allocated 100% fault to the City of Memphis for an accident in which Georgia Cross was injured. On appea l, the Court of Appeals a

pplied a “clear

ly erroneous” sta

ndard of review

and affir med the judgment of the trial court. We granted the City’s application for permission to appeal. We hold that, when reviewing a trial court’s findings of fact, an appellat e court m ust apply the de novo standard of review contained in Tenn essee Rule of App

ellate Procedur

e 13(d). To the ex

tent that it

permits an appellate court to apply a clearly erroneous standard of review, Coln v. City of Savannah , 966 S.W.2d 34 (Tenn. 1998), is clarified. In addition, the clearly erroneous language of Wright v. City of Knoxville , 898 S.W.2d 177 (Tenn. 1995), is limited to jury cases. Having reviewed the record
an d applying the relevant standard of review, we also hold that the trial court and the Court of Appealserred

in alloc ating 100% fault to the City of Memphis. W e conclude that G

eorgia Cross should be allocated 20% fault for the ac cident in this case

, that the City of Mem

phis s hould b e allocated 80% fault, and that the claims of both Georgia an d Nor man Cross should be r educed to reflect the appropriate allocation of fault. Accordingly, we reverse the judg

ments of the trial court and the Court of Ap

peals and remand

to the trial court f

or further proc

eedings. Tenn. R. App. P. 11; Judgment of the Court of Appeals is Reversed and Remanded

B ARKER , J., delivered the opinion of the court, in which A NDERSON , C.J., and B IRCH and H OLDER , JJ., joined. D ROWOTA , J., not participating.

Michael F. Rafferty, Jonathan E. Sch arff, and Brett A. Hughes, Memphis, Tennessee, for the appellant, City of M

emphis.

Cannon F. Allen, Brian S.Faughnan, and Mar k S. Norris, Memphis, Tennesse e, for the appell

ees, Georgia Cross, et

al.
OPINION The City of Memphis

has owned and maintained the Poplar–White Station branch of the Memphis and Shelby County Public Library since the branch opened. A ramp, which was installed at the library in 1981, runs from the entrance in a slight downward slope to the street running in front of the library. The City had curb cuts on either side of the base of the ramp, and each curb cut was-2-

painted ye llow. However, the degree of slope of the curb cuts did not comply with the City’ s construction code. On November 24, 19 94, the City

installed a handr

ail on the right side

of the ramp facing the building.

Four days later, on Nov

ember 28, 1994, Ge

orgia Cross

visited the library. Cross, who had been taking her childrento this library for four years, parked her vehicle beside the yellow painted portion of the curb cut. Cross was carrying one of her four children on her right hip when she noticed the handrail on the right. Cross testified that she assume d the handrail wa s installed to prevent people f

rom walking to

the entrance of the

library across a grassy area located to the right of the handrail, and she did not use the handrail. Cross proceeded directly to the walk ramp which she had walked up a number of times previously. Cross testified that as she started walking on the ramp, she was looking at

two of her childre

n who had run ahea

d of her. As Cross st

epped on to

the yellow curb cut with her right foot, the foot slid and her ankle gave

and broke in thre

e places. Cross
was hospitalized for one week after the accident, was be dridde n for several more months, and continues to suffe

r from traumatic

arthritis. Following the accident , Cross filed suit for damages against the City pursuant to the Tennessee Governmental Tor t Liability Act. Nor

man Cross, Georgia

Cross’s husband, also sought damages for

loss of consortium and loss of future consortium. After the accident but b

efore the trial, Norman Cross was diagnosed with amyotrophic lateral sclerosis, which carries a life expectancy of between two and t

hree years fro

m diagnosis.

At the conclusion of a bench trial, the court found that the City was negligent in creating the conditions that caused Cross to slip and fall, and it allocated 100% fault to the City and 0% fault to Georgia Cross. The court awarded $ 130,000.00 to Geor gia Cross for her cla

im and $39,500.00 to Norman Cross for loss of consortium. The court also found that, as a result of her injury, Georgia Cross will be unable to

care for her husband, and it awarded $78,800.00 to Norman Cross for future loss of consortium.

The City appealed argui

ng that Cross faile

d to use reasonable ca

re under the cir

cumstances, was at fault for more than 51% of the accident, and was, there fore, barre d from recovery. In reviewing the trial court’s apportionment of fault, the Court of Appeals applied

a clearly erroneous standa rd with a presumption of correctness. The appellate court concluded that the trial co urt’ s apportionment

was not clearly erroneous, and it affirmed the trial court’s decision. The City then soughtand this Court granted permission to appe al on the fo llowing issue: whether the Court of Appeals erred in applying a clearly erroneou s stan dard of review in the trial court’s allocation of fault, rather than t

h e de novo standar

d of review provi

ded for in Tennes see Rule of Appell ate Procedure 13(d).
DISCUSSION

Tennessee Rule o

f Appellate Proc

edure 13(d) pro

vides: Unless otherwise required by statute, review of findings of fact by the trial court in-3-

civilactions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of th e evidence is otherwise.

In W right v. City of Knoxv ille , 898 S.W.2d 177 (Tenn. 1995), this Court examined a trial court’s allocation of fault in a bench trial. With regard to this issue, the Court stated: Although it is true that the trier o f fact has considerable latitude in allocating percentages of fault to negligent parties, see, e.g. , Martin v. Bussart , 292 Minn. 29, 193 N.W.2d 134 (1971), appellate courts may alter those findings if they are clea rly
erroneous. Because this case was tried without a jury, our review of the issues of fact is de novo on the record of the trial court. However, we must presume that the trial court’s findings were correct unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d).

Id. at 181 (emphasis added). The Court’s analysis in Wright appears to

contemplate two different standards of review: clearly erroneous and de novo.

Two years later, the

Court of Appeals a

ttempted to resolv

e t his apparently contradictory language. In Varner v. Perryman , 969 S.W.2d 410 (Tenn. Ct. App. 1997), the court distinguished the portion of Wright

that suggests

a clearly erro

neous standard wo

uld apply to allocations of f

ault in a bench trial. Th

e court observe

d that Wright

cited to a jury case, Martin v. Bussart , in discussing the clearly erroneous standard. See id. at 411. In non-jury cases, though, the court concluded that the de novo standard of Rule 13(d) was controlling. See id.

While it would appear th

at Rule 13(d) addresses and

answers the issue

now before this Cou

rt, our opinion in Coln v. City

of Savannah , 966 S.W.2d 34 (Tenn. 1998), has created some confusion withregard to the applicable standard of review. In Coln , this Court examine d a tr ial court’s allocation o f f

ault. The Court cited Rule 13(d) but also quoted the “clearly erroneous” language from Wright . The Court applied Rule 13(d), howev

er, in affording

the trial court’ s findings a presumption of correctness. See id. at 45. Accordingly, we clarify Coln to the extent that it appeared to per

mit an appellate c

ourt to applya clearly erroneous standard of review to a trial

court’s findings o

f fact. Moreove

r, we limit the clearly erroneous language in Wright to jury cases. We hold that the de novo standard of

review in Rule 13(d) is the ap

plicable standar

d of appellate

review for findings of fact made by a trial court. Accordingly, we reverse the Court of Appeals w

ith regard to

the standard of review that is applied to a trial court’s

findings of fact.

In the i ntere st of judicial econ omy and because t

he standard of re

view is de novo, we

will also examine whether the trial court erred in allocating 100% fault

to the City of Memphis and 0% fault to Cross. Our review is de novo upon the record. Tenn. R. App. P. 13(d). We presume the correctness

of the trial court’s findings of fact which will be set aside only if the preponderance of the evidence is otherwise. See id.-4-

Havi ng reviewed the re cord using that sta

ndard, we concl

ude that Georgia

Cross i s responsible

for some fault

in this case. Cross

had visited the library before and had walked up the ramp a number of times after it had been installed in 1981. Thus, she was quite familiar with the
area. Cross testified that she saw the handrail when she arrived at the library and that she was aware that the curb cut was p

ainted bright yello

w. She did not use the

handrail, though,

but carried a ch

ild
on her right hip. More

over, as she step

ped onto the curb cut, she did not look down at the painted portion of the curb but was watching two of her children who had run ahead of her toward the library door.

Under

these circumstances, we conclude that Cross should be allocated 20% fault for the accident,and the City should be allocated 80% fault. Thus, the trial court’s judgment is modified to reflect the appropriate allocation of fault. Moreover, because Norman Cross’s claim for loss of consortium is deri vative, his amount o f recovery must a

lso be reduced by

the percentage

of fault allocated to his spouse. Cf. Tuggle v. Allright Parking Sys., Inc. , 922 S.W.2d 108-09 (Tenn. 1996).
CONCLUSION

We hold that, when reviewing a trial court’s findings of fact, an appe llate court must

apply the de novo standard of

review containe

d in Tennessee Rule

of Appellate Procedure 13(d). To the extent that it permits an appellate court to apply a clearly erroneous standard of review, Coln v. City of Savannah , 966 S.W.2d 34 (Tenn. 1998), is clarified. In addition, the clearly erroneous language of Wright v. City of Kno

xville , 898 S.W.2d 177 (Tenn. 1995), is limited to jury cases. Accordingly,
we reverse the Court of Appeals with regard to the standard of review that is applied to a trial court’s findings of fact. Having reviewed the record and applying the appropriate standard of review, we also hold that the trial court and the Court of Appeals erred in allocating 100% fault to the City of Memphis. We conclude that

Georgia Cross should be allocated 20% fault for the accident in this case, that the City of Memphi s should

be allocated 80% fault, and that the claims of both Georgia and Norman Cross should be reduced to reflect the appropriate allocation of fault. We reverse the judgments of the trial c ourt and the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion. Costs of this appeal

are taxed to the a

ppellees, Georg

ia Cross, et al.