# FILED February

7, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk LUCI LL E BESKE, ) ) Plaintiff/Appellee, ) ) Davidson

Circuit ) No. 91C-1809 VS. ) ) Appeal No. ) 01-A-01-9510-CV-00435 OPRYLAND USA, I

NC., )

) Defend ant/Appe

llant. )
IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE SI XTH CIRCUI

T COURT OF DAVIDSON COUN TY AT NASHVIL

LE, TENNESSEE
HONORABLE THOMA S W. BROTHERS, JUDGE Tracy Shaw HOWELL &

FISHER Court Square Building 300 James Robertson Parkway Nashville, Tennessee 37201-1107 Lar ry D. Ashwor

th ASHWORTH & HIGH 1st Floor, 227 Second Ave., N. Nashville, Tennessee 37201-1636 ATTORNEYS FOR PLAI NTIFF/APPEL

LEE
Dianna Baker Shew FARRIS, WARFI

ELD & KANAD AY Nineteenth Floor SunTrust Center 424 Church Street Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANT/APPEL LANT
AFFIRMED AND

REMANDED HENRY F. TODD

PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

LUCI LL E BESKE, ) ) Plaintiff/Appellee, ) ) Davidson

Circuit ) No. 91C-1809 VS. ) ) Appeal No. ) 01-A-01-9510-CV-00435 OPRYLAND USA, I

NC., )

) Defend ant/Appe

llant. )

O P I N I O N The defendant, Opry

land USA, Inc., has appea led from a judgment in favor of the plaintiff, Lucille Beske in the a mount of $125,000 for personal injuries sustained in a fall on the pr emise s of de fendan t. The jury award ed pla inti ff $20 0,000 , but the Tr ial J udge suggested a remittitur of $75,000 which was a ccepted by

the plaintiff without protest. The Trial Judg e also aw arded pl aintiff j udgmen t for $1,4 04.50 disc

retiona ry costs.

The def endant ha s presen

ted four issues fo r revie w, of whic

h the firs t is: I. The Tri al Cou rt erre d in d enying Opr yland USA , Inc.'s motion for a judgment in accordance with its motion for a directe d verdic t becaus e there was no ma

terial evidence

to support the jury 's verd

ict. In reviewing

the denial of a directed verdict, this Court is required to review the evidenti ary

record to deter mine whet

her it co ntains evidence o f facts w hich woul d support a verdict by a jur

y. Lazy Sev en Coal Sal

es, Inc. v. Stone &

Hines, P. C. , Tenn. 1991, 813 S.W.2d 400. If, taking the stronge st legitimate view of all the evidence in favor of the opponent of the motion and disregarding all contra ry evidenc e, a reasonable mind would be required to conclude the issues in favor of the movant, the motion should be sustained. Holmes v. Wilson, Tenn. 197 7, 551 S.W.2d 682; Flynn v. Shoney's, Inc., Tenn. App. 1992, 850 S.W.2d 458.
In a premises liability

case, the plaintiff must show a hazardous condition which was created by

the defendant, or of which the defenda nt had actual or constructive notice.-3-

Constructive notice may be shown by the existence of the ha zard for such time or under such circumst ances th at reas onable c are on th e part of defenda nt would ha

ve reve aled the

hazard to defendant. Paradiso v. Kroger Co., Tenn. Ap p. 1973, 49 9 S.W.2d 78; Allison v. Blount National Bank, 54 Tenn. A pp. 359, 39 0 S.W.2d 716 ( 1965); Gargaro v. Kroger Grocery & Baking Co., 22 Tenn. App. 70, 118 S.W.2d 561 (1938).
At the trial, no evidence was presented to show that defe ndant created or had actual notice of the hazar d. The evidence t

o show con structive

notice wa s as follow s: The plaintiff fell on defendant's premises whe n passing through one of two turnstiles at the entran ce of a t rain s tati on. P assen gers bo ardin g the tr ain we re requ ired t o pass throu gh one of the turnstile s which c ounted the number of

passeng ers. The

counter s were r

ead hour ly by one of def

endant's employ ees. There was no attendant at the turnstile where plaintiff fell. At the time of the fall there was a rush of passeng ers toward the train. Passengers we re not permitted to carry

liquid refreshment aboard the train, hence re freshments were discarded before enterin g the tr

ain. Some r

efresh ments wer

e not plac ed in rec eptacle s but were simply thrown on the ground or walkway . Management was aware that spilled beverages were a common occurrence at the entranc e to the turnstiles. The surface where plaintiff fe ll was of poured concrete which could be slick when we t. Some of the spilled beverages were "cleaned up" by

spreading with a broom to accelera te drying . If nearby

employees we

re too busy they did not clean up the spill. As plaintiff passed through the turnstile, it was crowded, she did see water on the pavement, but she fell at that point, and fe lt ice cold water on the pavemen t as she la y on the pave ment afte r her fa ll.

Defend ant cites Jones v. Zayre, Inc., Tenn. App. 1980, 600 S.W.2d 730, wherein, after plaintiff fell, she saw a plastic clothes clip near by which she theor

ized had caused her fall. This Court affirmed a directed verdict for the defendant for lack of proof of how long the clothes clip had been on the floor. I n the present case, there is evidence of the recurrent-4-

problem o f discar

ded beve ragesin the ar

ea and o f the fa

ilure of d efenda nt to rea sonably monitor this recurrent dangerous condition.

In Hale v. Blue Boar Cafeteria Co., Inc., unpublished, Tenn. App. WS Feb. 21, 1980, this Court reversed a directed verdict for the de fendant where plaintiff slipped and fell in an area where patrons reg

ularly spilled liquids on the floor.

In Bledsoe v. Delta Refining Co., unpublished, Tenn. App. WS Nov. 4, 1983, a patron slipped a nd fell on the pave ment of a self-se rvice pe troleum f acility where p atrons r

egular ly spilled pe troleum on

the pave ment. ThisCourt held

that the o perator of such a facility must exercise due care to protect its patrons from hazards cr eated by othe

r patrons as a result of the self service manner of operation. The c ause was remanded for trial upon the principles stated in the opinion.

In Stroming v. Houston's Restaurant, Inc., unpublished, Tenn. App. MS, Nov. 23, 1994, No. 01-A-01-9304-CV-00189, LEX IS 670, this Court affirmed a directed ve rdict where the fall occurred in the vicinity of a depression in a parking lot, but no evidence that the fall was caused by

the depression.

In Barrett v. Red Food Stores, unpublished, Tenn. App. MS Feb. 26, 1992, No. 01-A01-9108-CV-302, LEXI S 196, the plaintiff slipped in water which regularly dripped from ice cream while being placed in a display case. This Court affirmed a verdict for the plaintiff on the "common occurrence" theory. I n the present case, there is evidence tha t the spillage of beverages in the area

was a common occurrence of whic h the defendant had constructive notice. Defendant argues that plaintiff did not prove tha t her fall was caused by

discarded beverage. The jury

heard evidence from which it was rea sonable for them to infer that the fall w as caus ed by the d iscar ded be verages of whi ch defe ndant had co nstru ctive knowl edge and as to w

hich def endant di d not exerc ise rea sonable p recaut ions for th

e safet y of patrons.-5- No reversible error is found in defendant' s first issue.

Defend ant's second issue

is stated a s follows: II. As an alternative to a directed verdict, Opry land USA, Inc. is entitled to a new trial beca use the Trial Judge did not approve the jury 's verd

ict. The basis of this issue is the oral comment of the Trial Judge during the hea ring on defenda nt's motio n for a ne

w trial a s follows: Motion for a new trial, I have independently eva

luated all of the evidence, and I do not find the evidence pre ponderates agains t the jury 's verd

ict. It's a question of whe ther or not there was -- part of this case has been dismissed by summary judgmen t on the limited issue

and going to the

-- pres ented to the jury. I

think it was accurately

-- it was disputed -- it was just disputed factual evidence, and I cannot find the evidenc e preponderates against it, so I must respectfully deny the motion for new trial. [Emphasis supplied.] Defendant relies upon the emphasized portion of the above quotation to show that the Trial Judge failed to properly

exercise his function as thirteenth juror. Ide ally, a verba l approval of a verdict by the

Trial Judge should be in the form of, "I approve the verdict," or "I join in the verdict ," or " the verd

ict is suppo

rted by a preponderanc e of the e vidence ." Howe

ver, in James E. Strates Shows v. Jakobik, Tenn. 1977, 554 S.W.2d 613, the Supreme Court said:

[I]t is the duty of the Tr

ial Judge to weight the evidence and determine whether it preponderates ag ainst the verdict . . . . In the light of the quoted authority , the oral statement of the Trial Judge does not evidenc e any

revers ible fail

ure on hispart. The

re is no evidence

that he wa s dissatisf

ied with the verdict as mentioned in Miller v. Doe, Tenn. App. 1993, 873 S.W.2d 346 or Sherlin v. Roberson, Tenn. App. 1976, 551 S.W.2d 700.

Defend ant's th

ird issue i s presen

ted as fo llows: III. The Trial Court erred in ordering an insuff icient remittitur which resulted in an award of damag es beyond the range of reas onablene ss.-6- As stated above, the Trial Judge sugge sted (not ordered) a remittitur of $75,000 of the $200,000 verdict. The plaintiff insists that the remittitur, which was made by plaintiff without pr

otest, should be re stored by this Court.

T.C.A. Section 20-10 -102 prov ides as f ollows: Remittitur. - (a) In all jury trials had in civil actions, after the verdict has been rendered, and on motion for a new trial, when the trial judge is of the opinion that the verdict in favor of a party should be r

educed , and a re

mittitur is suggested

by the trial judge on that account, with the provision that in case the party in whose f

avor the verdict has been render ed refu ses to make the remittitur

a new tri al will be

awarde d, the par

ty in whose favor such verdict has been re ndered may

make such remittitur under pr

otest, and appeal from the action of the trial judge to the cour t of appe als. (b) The court of appeals shall review the a ction of the trial court suggesting

a remittitur using the standard of review provided for in Rule

13(d) of the Tennessee Rules of App ellate Procedure applicable to decisions of the trial court sitting without a jury. I

f, in the opinion of the court of appeals, the verdict of the jury

should not have been reduced, but the judgmen t of the tr ial cour t is correct in othe

r respe cts, the c ase shall be reversed to that extent, and judgment shall be rendered in the court of appeals for the full amount originally awarded by the jury

in the trial court. [Emphasis supplied.] Since the plaintiff did not make the suggested remittitur under pr otest as required by the statute, it is doubtful that the plaintiff has standing to request restoration of the remitted portion of the verd ict.
There is evidence that plaintiff's medica l expenses were $12,300.59; that she suffered a cracked tooth and a complicated fra cture of the patella of her right knee, requiring initial surgery and nine days hospitalization, a second surgery, and e xtensive and painful physical therapy . There

is also evidence t

hat, five ye ars afte

r the fa ll, plainti ff contin

ues to suf fer pai n in her knee, wear a brace , require assistance on stairs, and be unable to continue he r former activities of hiking, travel and volunteer hospital work. A doctor' s notes refer to plaintiff as "a very pleasant 72 yea

r old woman." No other evidence is cited or found a s to the age or-7-

life expectancy of

the plaintiff. The Trial Judge and jury had an opportunity to form impressions from actual observation of plaintiff. This Court, of course, does not have suc h
an op po rt un it y.
In the light of the fore going, this Court concludes that the evidence does not preponderate against sug gested remittitur and that the amount of the verdict, as reduc ed by remittitur, is supported by substantial and material e vidence.
Defendant's request for discr etionary costs is denied.
The judgment of the

Trial Cour

t is affir med. Costs o f this app eal are adjudg ed aga

inst the defe ndant. The cause

is remand

ed to the T

rial Cour t for nec essary

further procee dings.

Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE