### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE MARCH 2000 Session SHELIA RAE GIBBS, ET AL 

### . v. ROBIN MEDIA GROUP, ET AL 

### . v.

LINEBERRY PROPERTIES, INC. A Direct Appeal from the Circuit Court for Wilson County No. 9215; The Honorable Clara Byrd, Judge

No. M1999-00820-COA-R3-CV - Filed August 25, 2000

This appeal arises f

rom a slip-and-fa

ll accident which

occurred on pro

perty owne

d by th e Defendant

Lineberry Properties and leased by the Defendant Robin Media Group. The latter appeals from the jury verdict entered in the Wilson County Circuit Court. The jury assigned one hundred percent of the fault for th

e Plaintiff’s injur

ies to Robin

Media. After the court denied its motions for remittitur or a new trial, the present appeal arose.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS , J., delivered the op in ion of the court, in which F ARMER , J. and L ILLARD , J., joined. Julie-Karel Elkin, Nashville, for Appellant Hugh Green, Lebanon, for Appellees, Shelia Rae Gibbs & Char les David Gibbs Keene W. Bartley, Nashville, for Appellee, L ineberry Properties, Inc.

OPINION
RobinMedia Group appealsfrom a jury verdict entered in the Wilson County Circuit Court. For the reasons stated herein, we affirm the trial court decision. Facts and Procedural History
On January 21, 1994, Sheila Gibbs (“Plaintiff”) traveled to the Mt. Juliet, Tennessee office of Robin Media Group (

“Inte rMedia” or “Appellant”) for the purpose of exchanging a defective1 The defendant Robin Media Group operated under t he n ame “Inter

Media” or “Tennessee Valley CableVision.” We shall refer to t

he entity as “InterMedia.”
2 Jeffrey Roarke, also an In

terMedia employee, t

estifi ed that he was cont

acted by a supervisor and told to put salt on the steps at the Mt. Julie t office. -2- cable box. 1 Prior to January 21, the Wilson County area had experienced sleet and snow, and ice had accumulated

on the sidewalk and steps leading to the Appellant’s off ice. Mrs. Gib

bs entered the building v ia steps which s he noticed to be icy. She went into the building and transacted her business. Upon exiting the office, Mrs. Gibbs proceeded down the steps where she slipped and fell. As a result of the f

all, Mrs. Gibbs suff

ered several se

rious injuries.
The Plaintiffs filed suit against Robin Media Group, Inc., d/b/a I nterMedia. InterMedia answered the complaint and denied that it had possession or control of the portion of the premises where Mrs. Gibbs fell. The Plaintiffs filed an amended complaint on December 10, 1996, in which they addedLineberry Properties, I nc. (“Lineberry”) a

s a defendant. Lineberry wa s the owner of the prop ert y, and th e InterMedia office was operated under a lea se agreement with Lineberry . After Lineberry became a pa

rty to the lawsuit, Lineb

erry and I nterMedia

filed cross-claims against each other seeking indemnification

in the event a judgment

was rendered in

favor of the plai

ntiffs. Both defendants

also filed motions for summary judgment, arguing that neither had a duty to remove the ice and snow from the premises. Both parties’ motions were denied.
The lease agreement between the parties had been prepare d by William Farmer, a cor

porate officer of InterMedia. The lease provided that the Appellant was res pon sible for “maintenance inside” the building, while Lineberry was responsible f or “maintenance outside” the building. The agreement

did not specifically include or ex clude the st eps and sidewalk as being within the area termed“outside.” Additionally, snow and ice removal was not enumerated as be

ing included with

in the term “maintenance.”
After Mrs. Gibbs fell, Ra

e Taylor, a

n InterMedia

employee, c

alled an amb

ulance and someone contacted Mrs. G ibbs’ husb and, Ch arles. Upon arriving at the InterMedia office, Mr. Gibbs learned that his wife had already been taken aw ay by the ambulance. Mr. Gibbs had a conversation with Rae Taylor in which the latter stated, “I had told them that someon

e was going to falland they need to get this ice up.” Taylor also stated, “Now that they’ve fallen, they’re doing something about it.” At that time, Mr. Gibbs saw someone placing salt on the steps and sidewalk. 2
At trial, the court admitted, over InterMedia’s objection, the deposition testimony of Brenda Sc ott, InterMe

dia’s represen

tative. That testim

ony dealt wi

th the internal poli

cies of Inter

Media regarding the safet y of customers on its premises. The court also admitted, once again over InterMedia’s objection, the sta tements of Rae Ta

ylor made to

Mr. Gibbs after th

e accident. Fin all y, the court denied InterMedia’ s m otion in limine to exclude evidenc e showing that I

nterMedia employeestook measures to rem ove the ice f rom the steps after Mr. Gibbs’ accident. The jury rendered a verdict in favor of the plaintiff in the total amount of $115,000. The jury assigned 100%3 To the ex tent InterM edia claims e rror in the trial co urt admitting T aylor’s stateme nt that, “Now that they’ve

fallen, they’re doing something about it,” we believe the decision wa s harmless error. InterMedia does not dispute the subsequent remedial m easures whic h were und ertaken. T aylor’s stateme nt is only further evidence of those measures, and its exclusio n would ha ve had little, if any, pra ctical effect. -3- of the fault to

InterMedia. Finally, the jury determined that neither de fendant had breached

the terms of the lease agreement. This appeal followed.

Law and Analysis InterMedia has presented the following issues for our consideration: 1) whethe r the court erred in admitting the statements of Rae Taylor, 2) whether the c ourt erred in admitting evidence of InterMedia’s subsequent remedial measures, 3) whether the cour t erred in admitting evidence regarding I

nterMedia’s inte

rnal policies and

procedures, 4)

whether there is

material evidenc

e to support the jury’s verdict, 5) whether specific terms in the lease ag reement between Lineberry and InterMedia were ambiguous, and 6) whether the cour t erred in its instructions regarding the interpretation of the lease agreement. We shall consider each of these issues in turn. I. Statements of Rae Taylor
InterMedia

claims that the statements of Rae Taylor, introduced through the testimony of Charles Gib bs, were ina dmi ssi ble hear say. An evidentiary ruling by the trial c ourt is a question of law, and our standard of reviewis de novo with no presumption of correctness. City of Tullah oma v. Bedford County

, 938 S.W.2d 408 (Tenn. 1997).
Much of the debate between the parti es regarding this issue centers on the question of whether the statements qualify as an exception under Rule 803(1.2)(D) of the TennesseeRules of Evidence. We do not, however, believe that the analysis ever gets to that point because the statement is not hearsay. Hearsay is defined as a statement, other than one made by the declarant

while testifying at the trial or hearing

, offered in evid

ence to prove the

truth of the matter asserted. T.R.E. 801(c). The statement at issue is Rae Taylor’s stat ement , “I had told them that someone was going to fall and they need to get this ice up.” 3 This statement is clearly an out-of-court statement, and, in that regard, it satisfies the hearsay definition. However, we must also consider whether the statement was of fered into evi dence to prove “the truth of the matter asserted.” The matter asserted is that Rae Taylor told “them” that someone was going to fall and the ice needed

to be removed. The statement is removed from the realm of hearsay because the actual truth of that assertion is irrelevant. The statement was not presented as proof that Rae Taylor told any one about the ice. The statement was presented to show that someone with InterMedia, namely Rae Taylor, had knowled ge that ice had built up on the steps and/or sidewalk.-4-

We believe it to be clear that the statement presented is not hearsay. The very a ct of making the s tatement is evidence that Rae Taylor had knowledge of the da ngerous condition. Her knowledge, regardless of whether that knowledge was convey ed to anyone else at InterMedia, wa s sufficient to put InterMed

ia on notice of the

dangerous con

dition, thereby

invoking a duty

of care. See The Vogue, Inc. v. Cox , 190 S.W.2d 307 (Tenn. Ct. App. 1945). II. Subsequent remedial measures
InterMedia

also claims error

in the trial court’ s admi ssion of ev idence showing that InterM edia

empl oyees took me

asures to rid the s

teps of ice immedia

tely followi

ng the acciden

t. InterMedia

claims that the act of salting the steps and sidewalks was a non-admissible, subsequent remedial measur

e under Rule 407 of

the Tennessee Ru

les of Evidence.

Rule 407 provides: When, after an event,

measures are ta

ken which, if take

n previously, would

have made the event less likely to occur, evidence of the subsequent remedial measur es is not admissible to prove strict liability, n egligen ce, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of s ubseq uent measures whe n offered for another pur pose, such as proving controvertedownership, co n trol, or feasibility of precautionary measures, or impeachment

. (Emphasis

added). InterMedia ap

pa rently recognizes that this evidence also goes to the issue of control, which would clearly remove it from the purview of Rule 407. However

, InterMedia

argues that this “one instance

should not constitute

evidence of con

trol.” Unfortu

na tely, InterMedia’s position is clearly contrary to the a bove-quoted rule. Control of the steps and sidewalk was an issue of paramount importance in this case, and Rule 407 plainly prov ides that it does not preclude evidence tendered for

the purpose of proving control. InterMedia’s act of performing these remedial measures was clearly admissible under Rule 407, and we find no basis for concluding that the trial court erred in this regard. III. InterMedia’s internal policies
Brenda Scott served as the personal rep resent ative of InterMedia for the purposes of this case, andthe plaintiffs introduced portio ns of her depositio

n testimony a

t trial. InterMedia objected to the introduction of testimony relating to its internal policies and procedures rega rding the safety of customers. In essence,

Ms. Scott testified that it was InterMedia’s policy to maintain a safe pre mises for customers rega

rdless of issues such as ownership or control. She further testified that this policy would encompass the removal of snow and ice from the steps and sidewalk. InterMedia objec ted4 InterMe dia also claim s to base its objection to thi s evidence on rule 406, which deals with habits or routi ne practices. However, Rule 406 only operates as an avenue for the admission of evidence. It does not prov

ide a basi s for excluding e vidence. T he only reaso n to consider Rule 406 in t his case would be i

f that ru le served as the basis for the trial court’s decisio n to admit evide nce of InterM edia’s internal policies and procedures. This does not appear to be the case. There

fore we s

hall not consider

Rule 406.
5 In this section, we shall only deal w ith the verdict as it re lates to Mr s. Gibbs. W e will consider this i ssue as it relates to Lineberry in the subsequent sections of t he opinion. -5- to this testimony based on rule 403 of the Tennessee Rules of Evidence. 4 Rule 403 of the Tennessee Rules of Evidence precludes the admission of evidence when “its probative value i

s substantially

outweighed by

the danger of u

nfair prejudice, confusion of the issues, or misleading the jury, or by consider ations of undue delay, w aste of time, or ne edless presentation of cumulative evidence.” InterMedia claims that the admission of its internal policies prejudiced

its case insofar as the jury mig ht have equated a

breach of those

procedures with a breach of legal duty. Even if we were to agre e that the possibility of confusion existed, that mere p

ossibility is not enough, under 403, to exclude the evidence. The very languag e of the rule places the burden upon the party seeking to exclude the evidence by requiring that the probative value be substantially outweigh ed by the dang ers. The relevance and probative value of this evidence is clear. As we stated prev iou sly, issues of control and responsibility are of extreme importance as they relate to the steps and sidewalk outsi

de the Inter

Media office. We

are unable to say

that this evidence w as unfairly prejudicial at all, muc h less subs tantially so. Accordingly, we f ind no error in the trial court’s admission of this evidence.

IV. Material evidence to support the jury verdict
InterMedia

claims there is no material evidence to support the finding that they are 100% at fault for Mrs . Gi bbs ’ injur ies . Sp eci fic all y, InterMedia c laims that Line

berry or Mr

s. Gibbs herself should have been a

pportioned some of

the fault. 5
This court’s role in regard s to the present issue does not allow us to reweigh the evidence or consider where the preponderance lies. Instead, we must determine whe ther there is any material evidence to support the verd ict, and, if there

is, we mu st af

firm the judgment. See Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822, 823 (Tenn. 1994); Pullen v. Textron, Inc. , 845 S.W.2d 777, 780 (Tenn. Ct. App. 1992). We are required to take the strongest legitimate view o f th e evidence in favor of the verdict, assume the truth of the evidence i n su pport thereof, a

llow all reasonable

inferences to sustain the verdict and disregard all to the

contrary. Hobson v. First Stat e Bank , 777 S.W.2d 24 (Tenn. Ct. App. 1989).
In regards to Mrs. Gibbs, InterMedia argues that a per centage of fault should have b ee n attributed to her because she voluntarily attempted to t rave rse the icy s tep s. E sse nti all y, InterMedia claims that Mrs. Gibbs’ actions were unreasonable under the circumstances. However, there is no indication that Mrs. Gibbs was careless or fai led to exercise reasonable care. Mrs. Gibbs was6 Jeffrey Roarke, the InterMedia employ ee who salted th

e steps aft

er the accident,

testif ied that t here was no reasonab le way to enter the building witho ut encounte ring ice.

7 We recognize that this case was decided before the adoption of comparat ive fault in Tennessee. That f

act does not, however, make the q uoted passage any less applicab le. Fault, or lack thereof, is generall y to be decided by th

e trier of fact. The differences between contributory negligence and comparative fault are of no consequenceto the outcome in this c ase. -6- confronted

with the decision of whether to maneuver the ice in order to enter the building. It does no t appear that she would have been able to enter the building without encountering ice. 6 Her voluntary decision to maneuv

er the ice does no

t necessaril

ymake her careless. In Hellon v. Trotwood Apartments, Inc. , 460 S.W.2d 372 (Tenn. Ct. App. 1970), the court stated: Where, ho wever, the known dange r is not readily

avoidable and is su

ch as to effectively

obstruct the path

of plaintiff, plaintiff

is put to the decision of whether he will take the inevitab

le risk of procee

din g through the dang

er or will abando

n his intendedcourse and destination altogether. When such a situation presents itself, the question of whether the plaintiff undertook a greater risk t han an ordinarily pru den t pe rso n wo uld tak e un der t he ci rcum sta nces is u sua lly f or t he j ury. 7
Faced with the facts, the jury returned a verdict finding no fau lt lay with Mrs . Gibbs. As stated prev iou sly, it is not this court’s place to usurp the judgment of the jury unless no material evidence supports the jury’s decision. In the present case, the re was ample evidence upon which InterMedia’s liability could be predicated. The question of whether some percentage of the fault should have been attributed to Mrs. Gibbs was pr operly lef t to the jury,

and we have neith

er th e au thority nor the inclination to distur

b the verdict.

V. Ambiguity in the lease agreement
In this issue, InterMedia claims error in the trial court’s ruling the term “maintenance” to be ambiguous. The lease agree ment provided that

Lineberry

was responsible

for maintenance outside the building while

InterMedia

assumedthe same responsibility for the inside of the building. The specific question in this regard is whether the term “maintenance” includedsnow and ice remo val. Pursuant to the tria

l cou rt’s determinatio

n that the term was

ambiguous, the ju

ry was allow

ed to determine whethe

r “maintenance

” encompassed sn

ow and ice remova

l.
As an initial matter, we find no error in the trial court’s finding that the term “maintenance” was ambiguous. We ar e no more sure what the term means within this context than was the trial court. Moreover, having made such a determination, the issue was correctly submitted to t he j ury. See Hendrix v. City

of Maryville

, 431 S.W.2d 292 (Tenn. Ct. App. 1968)(“When the contract is in writing and its terms are i ndefinit e a nd ambiguous, or if the evidence shows that more than one inferencecan be drawn from the relationship, or if there is evidence of circumstancesand relations outside of the written agreement, the written contract alone cannot be determinative but a question of fact arises which must be determined by the jury ”).-7-

The lease clearly did not speak to snow and ice removal. In the long

relationship between the parties, InterMedia had never requested that L ineberry perform this function. The evidenc e showedtha t InterMed ia had notice of the icy conditions while there is no evidence showing that Lineberry had such notice. The jury’s determina tion that Lineberry was not responsible for re moving the ice which led to Mrs. Gibbs’ accident is clearly supported by material evidence and we will not disturb that finding. See T.R.A.P 13(d).

VI. Jury Instructions
In its final issue, InterMedia claims that the trial cou rt erred in instructing the jury that ambiguities in a contract were to be construed against the drafter. T his issue is without merit. Having found the langua

ge in the lease

to be ambiguous, the trial court complied with applicable law in giving theinstructions at issue. See Spiegel v. Thomas , Mann & Smith , 811 S.W.2d 528 (Tenn. 1991) (noting the general rule that ambiguities in contracts are construed ag ainst the drafter ) (citing Hanover Ins. Co. v. Haney, 425 S.W.2d 590 (1968)).
Conclusion For the reasons stated herein, we affirm the trial court decision. Costs of this appeal are taxed to the Appellant, Robin Media Group, for which execution may issue if necessary

.

___________________________________ ALAN E. HIGHERS, JUDGE