### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 8, 2002 Se ssion
JANIS LOUISE OLI VER-GILL v. JERRY T. KROHN, ET AL 

### . Appeal from the Chancery Court for Williamson County No. I-26029 Robert E. Lee Davies, Chancellor

No. M2001-02327-COA-R3-CV - Filed Mar ch 4, 2003

This appeal involves a suit brought by the buyer of certain real property

against the builder

and seller of that home seeking damages for , inter alia , negligent construction. From a jury ver

dict rendered in favor of the defendant , the plai ntiff app eals. We a ffirm. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed

W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and T OM E. G RAY , S P . J., joined.

Thomas F . Bloom, N ashville, Tenness ee, for the appe llant, JanisLouis e Oliver -Gill.

RichardM. Smith and H. Brent Patrick, Nashville, Tennessee, for the appellees, Jerry T. K

rohn and wife, L inda L . Krohn, d

/b/a Kroh n Homes, L

LC.
OPINION Jerry T. Krohn and his wif

e, Linda L . Krohn, d

/b/a Kroh n Homes, LL

C, constru cted a ho

use on a lot in the city of Br entwood, located

on a hill in e xcess of twenty perc ent grade. When construction was comme

nced on o r about A ugust 26 , 1995, co nsistent with th e city require ments concerning lots of this ty

pe grade, the Krohns hired Ronald Jones and GEC, Inc., for the pur poses of rendering a geote chnical survey and providing geotechnical supervision over the construction of this $699,000 home. This survey and r eport recommended that construction of the home be supervisedby a g eotechnical engineer, tha t comp acted fill be used in preparing the site for construction, and that the builder should not place any structure on a slope steeper than thirty- three percent in grade. Af

te r c om pl et io n o f c on st ru ct io n, bu t p ri or to Ms . G il l’ s p ur ch as e o f t he pr op er ty, Mr. Jones was called back out to the propert y in June of 1997 to evalua

te some extensive cracking and settleme

nt o ccurri ng in the driv eway turnaround of the

home. I n his inves tigation

of this problemwith the turnaround, Mr. Jones discovered that the rear section of the drive turnaround was cons tructedon six to eight feet of soil fill that was not adequately compacted. D r. Jone s recommended

two options for the remedy of this problem. The Krohns chose the first option, i.e.,-2-

to remove t

he drive turnaround, exca

vate the loose fill materia l, and re place th at fill

withshot rock,
a mixture of h

eavy grave l and so il. Purs uant to thisplan Krohn Homes’ agent, Lew is Morris, excavatedwhat he thought was the entirety of the uncompacted fill. Ms. Gill, through her age nt Patricia Carter, with Shirle

y Z ie tlin & Co mpany, beg an investigating this lot and house for the purpose of purchase in July of 1997. Consistent with this investigation, an inspection of the prope rty was obtained. That inspection report showed that the driveway portion of the lot was incomplete at the time of inspection. The appellant, Janis Louise Oliver-Gi ll, purch ased the house and lot now known as 6354 Shadow Ridge Road on or about July 27, 1997. Prior tothat purchase, during the execution of the land sale contract, and for an eig hteen-month period after purchase, this house and lot experienced repeated cracking and settl ing of t he dri veway and ga rage slab particularly. F rom July to December of 1997, the driveway turnaround, as well as the attached gara ge slab, continued to experience cra

cking a nd settling . In a

ddition, du

ring thi s time, Kr

ohn homes, with the guidance of Ronald Jones, made several attempts to remedy the cracking and

settling problem, the loose fill under th e dr iveway, a

nd the continued landsliding on the property . These efforts included the aforementioned

excavati on and re

placeme nt of unco mpacted

fill a nd the use of “V-trenches” and shot-rock buttresses to remedy the

continued land movement. After eighteen months of attempts t

o remedy this si tuati on, the parties discovered through pit excavation by Jones, and core drilling by geotechnical

engineer John Goff, that the suspected loose fill had extended far below the six to eight feet of fill that had been removed and that, in fact, loose fill and deca ying organic material existed up to twenty feet be

low the surface of the ground upon which the driveway w as constructed.

After this di sc ov er y, Ms . G il l f il ed su it ag ai ns t K ro hn Ho me s, Sh ir le y Zi et li n & Co mp an y, Ronald Jon es and Patty Carter, individually , for violation of the Consumer Protection Act, fraud, negligent misrepre se ntation, intentional misrepresentation, and negligent construction. Afte r responsive pleadings were filed an d jury demande d, a jury

trial wa s held in Will

iamson Coun

ty Chancery Court. From a jury

verdict in favor of the defendants Krohn Homes, e tal., M s. Gil l brin gs this appe al, raising the f

ollowing issues:

I. Whether

the trial court erred in failing to direc t a verdi ct inMs. Gill’s favor against Krohn Homes on the issue of neglig ent construction; II. Whether

the trial court erred in failing to instruct the jury as to the Doctrine of Res Ipsa L

oquitur; III. Whether

the trial court er red in instructing the jury tha

t Krohn could not be found liable if he was “ready , willing and able” to cure the defects in the pr op er ty.

I. DIRE CTED VERD ICT

It is well settled that this Court will not disturb a jury verdict if there is any material e

vidence to support it. Tenn. R. A

pp. P. 13(d

). When ashere the

case is s ubmitted to

the jury over a

motion for dire cted ver

dict, the burden u pon the ap

pellate c ourt rec eives a f

iner poin t.-3-

A directe d verdic t is appro priate o nly

when the evidenc e is susc epti ble to but one conclusion. Eaton v. M

cLain , 891 S.W.2d 587, 590 (Tenn. 1994); Long v. Ma ttingly , 797 S.W.2d 889, 892 ( Tenn. Ct. A pp. 1990) . We must

“take the strong est leg itimate view of the evidence f

avoring the opponent of th e motion whe n called upon to determine whether a trial court should ha ve granted a directed verdict.” Id. In addition, all reasonable inferences in favor of the oppon ent of the motion must be allowedan d a ll ev id en ce co nt ra ry to t he opponent’s position must be disregarded. Eaton , 891 S.W.2d a

t 590; Long , 797 S.W.2d at 892.

Alexander v. Armentrout , 24 S.W.3d 267, 271 (Tenn. 2000).

With the rela

tiv e st andards thus defined, this Court, on its review, must look at the jury ’s verdict and then decide if there is any material evidence

to support that verdict. This Court is not permitted to re-we

igh the e vidence ; the only

question t

o be answered is whether a g enuine material issue of fact

exists with r

egard to the cla

im. If an issue e

xists, then su

bmiss ion to the jury was appropriate. The jury in this case was provided a verdict form. I n that form regarding neg ligent construction, the question was posed to the jury: “Are the defendants at

fault of t he neg ligenc e with regard to the soil’ s suitability

and the driveway

problems?” To this question the jury responded in the negative. To preva il on any claim of n

eglig ence, a

plaintiff must establish a breac h of the a pplicabl e standardof care

owed by the defe ndant to the plaintif

f proximate

ly c ausing a

n injury or loss. Lindsay v. Miami Dev. Corp ., 689 S.W.2d 856 at 858 (Tenn. 1 985); see also McClenahan v. Cooley , 806 S.W.2d 767, 774 (Tenn. 1991). The “ultimate issue” in n egligen ce cases is the question of proximate

causation. McClenahan , 806 S.W.2d at 774. The supreme court has held that

this issue is a jury question “unless the unc ontroverted facts and inference s to be drawn from them make

it so clear that all r easonab le perso ns must

agree on the proper outcome.” See McClenahan , 806 S.W.2d at 775.

Ms. Gill pres ented in h er case in chief the testimony of

two geo technic al engineers. Ronald Jones was the engineer who consulte d with

Krohn Homes during the construction of 6354 Shadow Ridge. John Goff was retained by the plaintiff

primarily for the

purpose of showing what measures would be r equired to remedy the se ttling problems with the house and the turnaround. As the appellant points out, Mr. Jones did testify that the three recommendations made in the initial report were, in his opinion, “good construction practice.” When asked whether Krohn Homes’ f

ailure to follow his recommendations caused the soil problems in the driveway settling, Mr. Jones answered in the af firmativ e. I

n that same

examinatio n, howeve

r, Mr. Jone s testifie d that his o pinion wa s in hindsight.

The evidence is clear that the six feet or so of loose fill beneath the d riveway w as placed there by Kr

ohn Homes. Th

is is the sa

me fill dirt that was removed by Krohn Homes and replaced withshot rock in the efforts to resolve the lack of compaction proble m that was contributing to the continued settlemen t of the dr iveway. The re is no evidence that Krohn Homes was awar e of the-4-

subsurface conditions existing underneath the shot rock fill. This was not known until October of 1998 when Mr. Jones dug the test pit. He testified:

Q. In October of

1998 y ou dug a

test pit, is that cor

rect? A. Yes, sir. Q. And in October of 199 8 that i s the first time you really realized the severity of the pr

oblem; is that true? A. Yes, sir. Q. And the caus e of the defective driveway and the faulty y

ard is a ravine that was underneath the driveway ; is that accurate? A. That

was our speculation that that would bethe explanation for why there was su ch a deep fill in that one location whereas the house we knew was on much more shallow ground.

The controlling question then is not what Krohn Homes knew at the time of the construction but what in

the exerc ise of reasonable diligence, Krohn H omes should have known relating to the subsurface conditions. As to this controlling issue, Mr. Jones testified:

Q. Mr. Jones, is it a stan dard practice in the residential construction community

to test the compaction of fill under a driveway before the drivewa

y is poured? A. Are you talking

about a f ill that is already

there or a fill that y ou are placi ng? Q. A fill that is already ther e? A. Probably not for re sidential construction.

So a jury question is made and the trial court

correctly overruled the plaintiff’s motion for a directed verdict

. II. JURY INSTRUCTIONS

The next two issues raised on appeal concern the court’s jury instructions. Specifically, the appellant complains of the trial court’s refusal to instruct the jury regarding the doctrine of res ipsa loquitur. In a

ddition, the appell ant challengesthe following instr uction aserrone ous:
The de fe nd an ts ha ve th e b ur de n o f e st ab li sh in g b y a preponderance of the evidence all of the facts necessary

to prove the following issues: 1. That theplaintiff should have mitigated her damages. 2. That def endant s were ready , willing , and able to cure any defects in their work.

The trial court’s duty in instructing a jury is a well settled proposition. “Trial courts have a duty t o give substantially a

ccurate instructions with regard to eve ry fact and theory ra

ised by t h e plead ings and supported by the pr oof. See, e. g., Stree t v. Calve rt , 541 S. W.2d 576, 584 (Tenn.-5-

1976). However

instructions are not expected to be perfect. In re: Estate of Elam , 738 S.W.2d 169, 174 (Tenn. 1 987). The

task of the appell ate court is equally we ll settled: To review the instructions in their entirety a

nd in context to determine whether the instructions as a whole fairly and accura

tely embody the parties’ theories

. See Ingr a m v. Earthman , 993 S.W.2d 611, 626 (Tenn. Ct. App. 1998).” Regarding the cour

t’s “rea dy, willing a

nd able”instructi on, the ap pellant u rges th at this introductory

summary of the re

lative burden of the parties prevents the jury from finding Krohn Homes lia

ble for neglig ence if

they were re ady , willing

and able to cure any

defects in their work. Alth ough the trial

court list s no author

ity or factual basis for this introduction, when viewed in the cont ext of the whole jury instruction, this Court does not find the introduction misleading. The require ments for proving a prima faci e case of neglig ence in c onstruct

ion is provided else

where in the charge. I

n addition, the jury verdict for m indicates that

the jury found, not that the defendant met its “burden” as described, but rather that the plaintiff did not meet he r burden.

The doctrine of

res ipsa loquitur

revolves around therebuttable presumption of a breach of duty of carewhen a plaintiff shows that an instrumentality proximately causing injury is within the exclusive control of the defendant, and the injury is of such a ty pe that no rmally would not occur but for negligence. See Susm

an v. Mid- South Fair

, 180 Tenn. 471, 474, 176 S.W.2d, 804 (1944). The facts as presented to the jury do not of themselves support the presumption. Ronald Jones testified that there wa s no way

to tellthe origin of the sub siding f ill on 6354 Sh adow Ridg e Proper ty. With regard to the uncompacted fill and attempts to reme dy the settling Mr. Jones testified:

A. We found ab out 20 fee t of unsuita

ble mater ial. Now the lower three
or four fe et of tha

t was wet clay that coul d be wash

ing ma terial into an old ravine. Above that was about three or four feet of topsoil which could have been a wash in. And then t

he ten feet above

that was u

ncompac ted fill. Q. And you didn’t realize that ravine was there until October of 1998 or May of 1998; isthat rig

ht? A. That’s c orrect

. Q. You don’t know who put that unsuitabl e material in that old ravine; do you? A. No, sir. Q. You don’t know

if it was the d evelope r, whether it wassomeone e lse
or wh et her it wa s Mr . K

ro hn? A. Well, from

what I reca

ll about the grading of the site at the time that the house was built, it is c ertainly possible s ome of tha

t fill was already

in there. But there was definitely

fill added by the builder a fter the house was finished. Q. That

was that six to eight

foot of fill that Mr. Krohn and Mr. Morr is told y ou about; i s that cor rect? A. Yes. Q. That was pulled out right - - A. Yes.-6- Q. In June , after

you r June 9th le

tter, is th at corr

ect? A. Yes, it wa s. Q. I want to look at your

June letter

real qui ck, and I

don’t need any

help from anybody . The way

I read this letter, Mr. Jones, is to build a retaining wall at the base of the slo

pe would control the sliding but would not control the consolidation settleme nt; isn’t th at righ

t? A. That’s c orrect

. Q. So if Lewis Morris exercised option one, it would l ook like to me option one

would tak

e care of both pr

oblems? A. It would have if it had been done deep enough. Q. That

is right if the fill wa s only

six to eigh

t feet lik e Lewis Morri s told you, this would have worke d; right. A. Most likely , if that ha d been the

only unsuitabl e materi al. Q. Ok ay. But as we

know ther

e was a nother 15 foot of

bad unsuit

able
ma teria l un dern ea

th t ha t; r ig ht? A. Ten to twelve feet and more. Q. It is complet

ely reasona ble for M r. Morristo exercis e op tion one in light of the circumstances that he understood at the time? A. It would have been provided as I said that he got down to the firm bearing. Upon r e-dir ect by the plain tiff, Mr. J ones a dded t he fol lowi ng:
BY MR. CHE

ATHAM:
Q. I would like to - - you have a copy of y

our deposition in this case; don’t you? A. Yes, sir. Q. At pa ge 32 I be li ev e d id you no t t es ti fy t hat there wa s - - that you t hought that there was - - they

pushed material out toward the driveway are a whe n they cut the house out? A. We mentioned that as one of the possibilities that the s ource of the material that was filling in the old ravine was possibly from more than one sourc e. One logical explanation would be as they cut the house out, they would have pushed the material out. And some of it would have gone in the ravine.

And I also I

think I indicated that

for all we know when they built the road they c ould have pushed some of the material in at that time too. Throughout

the subsid

ence no one was aware of the extent of the loose, uncompacted fill. Mr. Krohn te stified a s follows:-7- Q. Well, let’s get back to the driveway

. Tell the jury what hap pened in September of 1998 after these last repair e fforts eight months ago. A. Ron Jones came back out again, inspected the drivewa y and he said, ok ay, this time we need another one of these V trench buttre sses butwe need it right be lo w t he en d o f t he dr iv ew ay, ab ou t 1 0 fee t o ff th e e nd of

th e d ri ve wa y. All t his time it w as obviousthat he di dn’t know exactly what th e problemwas because ev er ything he w as trying wasn’t working. And I ’m not an engineer. I don ’t know ho w to do it myself, so I have to follow the engineer’s advice

. So we came back

right at the end of the driveway and dug another V trench down 15, 18 feet; filled it full of shot rock hoping that would hold whatever
was causing

the slid e under t hat back portion of that driveway up. So we dug the trench. He came and out and inspected our work at that time on-site while it wa s open and approved it and we refilled the trenc h. Q. Okay. Now a

t this particular time was the ravine discovered? A. It was a little after this in September of ‘98 towards – a little closer towards the end of the year tha t he finally came

up with – surmised that, you know, we’v e got a problem

here tha t’s much d

eeper. And what –

do y ou want me

to expound on it? Q. Yeah, go ahead. A. And what rea

lly s olidifiesthat is whe

n this Mr. Goff testified the other day that he did these core drillings and he went down 23 feet or something like that and he ca me up . And , rem

embe r, he said t he fi rst si x feet wa s f

ill, which we did. Then there was another portion of dirt. Then you got into another

so many fee

t of fill and then you g ot down to something that smelled like sewage.

Well, what

happened is when the developer was building the road s in there and he’s cutting that cul-de-sa c up there, he’s cutting down trees and digg ing
u p stumps and all this stuff. Well, he’s got to do something with them. There obviously was a ra vine on the

right sid e of that lot. Q. I wa nt you to sh ow th e j ur y. A. In this area right here (indicating ) when they dug these streets out there was gully or

a ravine going down this way . And what they did is they took debris and stuff out of this road, trees and stumps and stuff, and filled that ravine. Then they came back an d put their

own fill on top of that. Then they ca me back and put dirt on

top of it. If you remember , when he was going down his specimen he said I’ve got eig ht feet o f fill. I’ve got two feet of top soil. Then I’ve g ot another six feet of fill or so and then I run

into this stuff that smells like sewer. Well, that’s rotting and decay ing tree stumps and stuff. So our problem, which we thought was our fill or whatever, was not

–that wasn’t our problem at all. And we’ve been treating a guy with dand

ruff wit h foot me dicine or

something . We were

n’t even attemptin g – in fa

ct, ever yth ing w e were doing was helping to cause more problems because

as we we re putting all this
w eight up on the hill and the shot rock and this stuff is decay ing and moving an d-8-

water going through the

stuff underneath, it’s pushing down and causing the

hill to push out. So I’ve spent upwards of $50,000 a tleast working on this thing and it hadn’t w orked. B ut we nev er once stopped tr

yin g to fix it. By the

time we can surmise what’s going on – do y ou want me to carry

on? Q. Yes, sir, go ahead. A. It’s the latte

r par t of December. Well, in January I get a letter

from Mr. Cheatham

and he’sthreate

ning me with a lawsuit if I don’t buy the house back and pay them a sub stantial a

mount of mo ney . Well, I

told them I

wasn’t pr epared to do that. So he filed suit andMr. Cheatham told me to get off the property

. I couldn’t do anymore wo

rk, anything e

lse to it. So to this day I don’ t know if the work th a t we did in December – October and Dec ember of ‘98 actually worked or not. It was left open.

Now, folks, you can’t lea

ve open ground

unattend ed. You a ll saw the pictures on the television of all that water runni ng of

f t he ba ck of

th at dr iv ew ay. T hat’s been g oing on f

or three ye ars. Tha

t’s goin g to ero de thing s. It’ s goin g t o w ashout things and it’s going to make it look just as bad as that looks. But th e problem is we were never allowed to finish it.

Mr. Krohn and Mr. Jones testified that the f ill which led to the se

ttling and crack

ing could have c ome from the original developer of the subdivision or ro ad c onstruction prior to Krohn Homes’ever purchasing the projects.

The unknown su

bsurfac e conditi o ns di d not constitute an instrumentality under the exclusive control of the defendant. I t was not error for the trial court to decline to char ge res ipsa loquitur

. The res ipsa loquitur doctrine does not apply in case s where reasonable persons could not conclude that

the defendant’s negligenc e, more probably than not, caused the plaintiff’s injury. W. Page Keeton , et al., Prosser & Keaton on the Law of Torts § 39, at 248 (5th ed. 1984). Accordingly , the res ipsa loquitur doctrine does notapply in caseswhere th

e plaintif f’s injur y c ould reasonably

have occurred even withoutthe defendant’s negligenc e. Cockrum v. State , 843 S.W.2d 433, 438 (Tenn. Ct. App. 1992 ); Brown v. University Nursing Home, Inc. , 496 S.W.2d 503, 509 (Tenn. Ct. App. 19 92); Walls v. Lueking , 46 Tenn. App. 636, 643, 332 S.W.2d 692, 695 (1959).

Underwood

v. HCA Health Services of Tennessee, Inc. , 892 S.W.2d 423, 427 (Tenn. Ct. App. 1994).

There is so methi ng dis quiet ing ab out paying $699,000.00 f or a new home and then being beset by p roblems that

seem to defy r

emedy. To have

a driveway

settling in the manner depicted by photographs in this case, rendering the ga rage all but useless for its intended purposes andmaking for an unsig htly condition

is certa inly not what A

ppellant barga ined for or envisi oned. Thi s is,-9-

however, a negligence ca se in which the burden of proof rested upon the plaintiff to prove tha t the builder was a t fau lt. We

have a jury

verdict on a

question of fact. There is material evidence in the record to support the verdict of the jury and at this point the appellate inquiry c omes to an end.

The judgmen

t of the tr ial cour t is in all respects affirmed with costs assessed to the app ellant. Costs are assesse d to Appellant.

___________________________________ WILL IAM B. CAI

N, JUDGE