# FILED September 5, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ JAMES CHASE, JR., Plaintiff -Appella nt, Shelby Law No. 58129 T.D. Vs. C.A. No. 02A01-9607-CV-00171 PHYSIOTHERAPY ASSOCIATES, INC., F. WILLIAM HACKMEYER, JR., and EVERETT P. HAILEY, Defend ant-App ellees.

______________________ _____________________________________________________ _ FROM THE CIRCUIT COURT OF SHELBY COUNTY THE HONORABLE D’ARMY BAILEY, JUDGE

Eugene C. Gaerig o f Memphis For Appellant John W. Le ach of Me

mphis Spicer, Flynn & Rudstrom of Memphis, of Counsel

For Appellees

AFFIRMED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE

This is premise s liability

suit. Plaintiff, James Chase, Jr. (Chase), appeals the trial court’s entry of a judgment on the jury verdict finding that the d efenda nts, F. William Hackmeyer, Jr.2

and Everett

P. Hailey, were 50% negligent and that Chase was 50% negligent, ther efore barring Chase’s recovery. Chase suffer s from mult

iple scle rosis, an d his physic ian ref erred h im for phy sical ther apy to the Neur

ological Center of Physiother

apy Assoc iates, In

c., a tenant in Execut

ive Square Office Building in Memphis, Tennessee owned by defendants F. William Hackmeyer, Jr. and Everett P. Hailey. C hase we

nt to Physiotherapy Associates for physical therapy on December 15 and 17, 1992. O n Decem

ber 29, 1 992, while

on his way to his third physical therapy appointment withPhysiother

apy Assoc iates, Cha se alleg edly suff ered inj uries whe

n his whee

lchair fellover backwards as he was ascending the ha ndicap ramp in front of Executive Square. On December 1, 1993, Chase filed a complaint against Phy siothera py Associ ates, F. William Hackmeyer, Jr., and Everett P. Hailey alleging that the de fenda nts were ne gligent in maintaining the prope

rty and th at Chase w as injure d as a dir ect and p roxim ate res ult of the defenda nts’ negligence. The complaint fur ther a lleges tha

t the def endants b reached their

common law duty to provide Chase with a safe ramp that co uld be use d by perso ns in wheelc hairs. The complaint avers that the ramp was too narrow, too short, and too steep and that the ramp constit

uted a dangerous incline that was unsafe for whe elchair use. The complaint further avers that the defend ants kn ew or should have known that the ramp was not safe for disabled persons u sing whee lchairs. The comp laint also avers that the r

amp was th

e only ra mp availab le for disabled persons using wheelchairs wishing to visit Physiotherapy Associat es, Inc. and that an ordinary person would not know that

the ramp was too steep, too na

rrow, too short, and could cause a wheel chair to turn over

. In addition, the compl aint alle ges that th e defendants viol ated the Tenness ee Public Building Access ibility Act , T.C.A. § 68-120-201 et seq. (the Act), in that the ramp did not meet the minimum specifications as set forth in T.C.A. § 68-120-204 because it had a slope steeper than twelve inches vertical rise for eac h twelve feet horizontal run. The complaint alleges that this violation of the Act was negligence per se. Furthermore, the complaint avers th at the ra

mp violated the slope and clearance provision applicable to ramps of the 1976 Building Code of the City of Memphis and Shelby County, Tennessee. As a result of the fall, Chase alleges that he incurred pain and suffering, exacerbation of his multipl e sclerosis, medical expenses, mental anguish, deterioration of his physical condition, loss of earning capacity, and loss of enjoyment1 This was apparently Chase’s second amendment to the complaint. Although the

record does not contain the first amendment, his amended complaint states that the a d damnum is $2,000,000.00 pursuant to the court’s order of July 8, 1994 allowing the amendme nt. 3 of life. The complaint requests a jury trial and prays for compensatory damages in an amount not to exceed $1,000,000.00. Defend ants Hackme

yer and H ailey fil ed an an swer de nying that th ey designed or constructed

the handicap ramp on which Chase fell and stating that the ramp wa s in existence when they acquired ownership of the premis es. The defendants further deny that they we re guilty of any negligence or other conduct that caused o r contributed to Cha se’s alle ged injur ies. They admit thatthe Act was in full force and effect at the time of the accident, but deny that they violated any portion of

the Act. In addition, the defendants assert that the Act has no application to buildings existing at the time of its enac tment. The

defenda nts further

admit that

the Memph

is building code was in full force and effect at the time of the accide nt, but den

y its applic ability because the building code also does not apply to buildings in exi stence a t th e time of the enactment of the Act. In addition, the defendants ave r that Chase placed himself in a position that he knew o

r should ha

ve known w ould likely

cause in jury, con stituting a voluntary assumption of a know n risk and thus a complete bar to his recovery. Finally, the defendants aver that Chase was guilty of negligence or other conduct that cause d or contribut e d to his alleged injuries, damages, or losses and that this negligence or other conduct w as in a de gree eq

ual to or greater than any alleged negligence or other conduct on their part. On January 2 9, 1996, Chase fil ed a motio n to amend the compl aint to ch ange the date of the building code to 1967 and to alleg e that the ra mp when installed did not meet the 1967 building code, particularly § 617.0. The trial court entere d an order allowing this amendment

on the same

day. 1 On February 8, 1996, during trial, Chase filed a motion to amend the complaint ag ain to set forth additional provisions of the 1967 Memphis building code. On February 12, 1996, the trial court entered a n order denying Chase’s motion to amend the complain t. Sometime

be for e trial, the trial court granted summary judgment in favor of Physiotherapy Associates, Inc. on the ground that the handi cap ramp was the landlord’s responsibility, and not the tenant’s. Consequently, Physiot herapy A ssociate s, Inc. w as not a4

defendant at trial a nd is not a p arty to this appeal. The jury trial of the ca se again st th e remaining two defendants began on January 29, 1996. At the end of the defendants’ proof, on February 13, 1996, Chase moved for a directed verdict on the issue of comparative ne gligence. The trial cou

rt denie d this motion

from the b ench an d submitted the case to the jur y. On February 15, 1996, the jury returned a verdict form stating that the defenda nts were 50% at

fault and that Chase was 50% at fault. O n February 23 , 1996, the judge entered a judgment on the jury verdict and dismissed the case. On March19, 1996, Chase filed a motion for the entry of a judgmen

t in acco rdance with Tenn. R. Civ. P. 59.01 and 50.02. Chase also filed a motion fo r a new trial and to amend or make additional findings of facts and/or alter or amend the judgment. On June 25 , 1996, Cha se filed an amendment to his motion for a n ew trial. On July 9, 1996, the trial court entered two orders denying each of Chase’s motions. We will now consider

the issues presented for review. The first issue as stated in Chase’s brief is: 1. Did

the defe ndants pr esent an y proof du

ring the tr

ial o f this cas e th at on the d ate of December

29, 1992 in

Memphis, T ennesse e, JamesChase, Jr . in his whee lc hair did anything di fferent than another wheelchair user while using the def endants’ handicap ramp, t hat is, g o straight up the ramp and use the ramp as it was intended to be used? We should first note that the issue as phrased s eeks an answer that is irrelevant. It appears that the issue for review is whether the trial court erred in failing to direct a verdict for Chase on the issue of his comparative ne gligence. Chase asserts that there is no proof that he

was compara

tively ne gligent a

nd that the

trial c ourt shoul d have granted a directed verdict on this issue. He further contends that the charge to the jury on this issue was pre judicial. When deciding a motion for directed verdict, both the trial court and the reviewing court

on appeal must look to all the evidence, take the strongest legitimate view of the evidence i n favor of the opponent of the motion, and allow all reasonable inferences in favor of that party. Tennessee Farmers Mut. Ins. Co. v. Hinson , 651 S.W.2d 235, 237 (Tenn. App. 1983). The court must discard all countervailing evidence, and if there is then any dispute as to any material fact or any doubt as to the conclusions to be drawn from the whole evidence, the motion must be denied. Id . at 237-38. The court may grant the motion only if, after assessing the evidenc e according to the for

egoing sta

ndards, it determines that rea sonable m inds could

not diffe r as to5

the conclusions to be drawn from the evidence. Sauls v. Evans , 6 35 S.W. 2d 377, 379 (Tenn. 1982); Ho l

mes v. Wilson , 551 S.W.2d 682, 685 (Tenn. 1977). If there is any doubt as to the proper conclusi o ns to be drawn from the evidence, the motion must be denied. Crosslin v. Alsup , 594 S.W.2d 379, 380 (Tenn. 1980). The modified form of

c omparat

ive negli gence a

dopted in McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992), requires that the plaintiff ’s neglig ence re

mainless than the defendant’s negligence in order to allow a recovery. Id. at 57. In Eaton v. Mc Lain , 891 S.W.2d 587 (Tenn. 1994), the Supreme Court set forth a general set of guidelines to assist trial courts and juries in their duti es of app ortioning fault: In summary, the percentage of fault ass igned to e ach par

ty should be depe ndent upo n all the c ircumsta nces of t h e ca se, including such factors as: (1) the relative closeness of the causal relation ship betweenthe conduct of the defendant and the injury to the plain

ti ff; (2) t he reas onablene ss of the p arty’s c onduct in confronting a risk, such as whether theparty knew of the risk, or should have known of it; (3) the extent to which t he defendant failedto reasonably utilize an existing opportuni ty to avoid the injury to the plaintiff; (4) the existence of a sudde n eme rgency requiring a hasty decision; (5) the signif icance of what th

e party was attempting to accomplish by the conduct, such as an attempt to save another’s li fe; and ( 6) the pa rty’s particu lar cap acities, such as age, maturity, training, education, and so forth. We do not wish to imply from our enumer ation of these factors tha t they constitute an exclusive list for the purpose of apportion ing fault between the negligent parties. As stated above, the fault apportionment

question is ultimately dependent upon all the circumstances of the case; and j uries will continue, as they have in the pa st, to rely upon their common sense and ordinary experience in apportioning fault. Nor do we wish to imply that these factors will not need to be revised or exp anded a t some future date

as we are presented with specific factual situations. We have only attempted in this opinion to give general guidance to the bench and

bar; and any unresolved questions with respect to the factors must wait f

or anothe r day. Ag ain, while

we realize that all these factors will not be applica ble to every case, we be lieve t hat this approach is superior to leaving trial courts and juries completely without stan dards in this process. Therefore, we ho ld that the trial court should take the factors int o con sid eration, if applicable, in ruling on a motion for directed verdict or JNOV which alleges negligence on the part of the plaintiff. The trial court should also incl ude the factor s, if applicable, in its instructions to the jur y on th e fault apportionment question. Id. 592-93 (footnotes omitted). I n this case, Chase testified that he used his crutches on his two previ ous visits t o Physiotherapy A ssociate s and did not notice the ramp. He stated that he used the ramp on6

Decemb er

29, 1992 because Physiotherapy Associates told him to do so and that the ramp o n which he fell was the only handicap ramp at Executive Square. He further testified that he observed the ramp for the first time on December 29, 1992 and then only a very short period of time, just under

a minute, before

he bega n his asce nt. Chase testifie d at trial

that his wh

eelcha ir rolled str aight up the ramp a

nd that he fell stra ight back wards. Even though Cha se obser ved the r amp only for a brief period of time, he admitted that in that period of time he “observed that it was an awful steep ra mp.” In a ddition, a lthough Cha se testified that

he rolled straight up the ramp and flipped s traight ba

ckward s, there

is testimon

y in the record that he was found lying on his side a nd that the

right side of his clothes was dirty from falling on concrete. This is evidence from which rea sonable minds could d iffe r as to whether Chase ascended the ramp directly in the middle, as he testified, or more to one side. Moreover, under Chase’s theory in this case, the obviousness of the condition of the handica p ramp present s at the very least a factual

question as to what degree he was negligent in encountering a known risk. Taking the stron gest legit imate view of the e

vidence and allowing all r

eason able inferences in favor

of the defendant s, the evi dence in troduce d presen

ts a fac tual i ssue as t o whether the plain ti f f, Chase , was com

parativ ely negli gent. The refore , the tria

l court pr operty deniedChase’s motion for a directed verdict and submitted the issue of comparative fault to the jury. This argument is without merit. Chase also contends that Tennessee law gives this Court the right to alter the jury’s findings when those findings are clearly erroneous. This Court does not reweigh the evidence

or reevaluate the witnesses’ credibility in an appea l from a jury verdict. Witter v. Nesbi t , 878 S.W.2d 116, 121 (Tenn. App. 1993), appeal denied , (Tenn. 1994), cert. denied , 513 U.S. 873, 115 S. Ct. 199, 13 0 L. Ed. 2d 130 (1994 ). On app eal, this Court isrequire d to take the stronges t l egitimate view of the evidence favoring the preva iling party, discard all contrary evidence, allo w all reasona

ble infe rencesto uphold

the jury’s verdict, and set aside the jury’s verdict only when there is no mater

ial evide nce to sup port the v erdict. T.R.A.P. 13 (d); Witter , 878 S.W.2d at 121. From our review o f the re cord, the re is mate rial evid ence to s upport the

jury’s fin din g that the defe ndants we re 50% a t fault and that Chas e was 50% at fault. Therefore, we find the first issue to be without merit.7 Under McIntyre , a plaintiff who is fo und to be 50% or more at fault is barred from recovery. 833 S.W.2d at

5 7. Accordingly, all issues relating to damages are preter mitted. In addition, the issue raised by the defendants disputing theevidence of thesteepne ss of the r amp is also pretermitted. We will now consider the remaining issues raised in this appeal. 2. Did the le arned T

rial Judg e provide

complete and ade quate jur

y instruc tions? Chase contends that the trial judge gave inc omplete a nd inadeq uate jury instructions on the issue of negligence per se. He a sserts that the steepness of the ramp is a violation of the building code and that this violation constituted negligence per se. The defendants contend that there is no negligence per se because n o provision o f the build ing co de imposes a duty on purchasers of property to make improvements to bring the property up to current code requirements. The doctrine

of neglig ence pe

r se is fir mly establ

ished in ou

r case l aw. In or

der to

recover on the basis of negligence per se, three ele ments must be established. First, it must be shown that the d

efenda nt violate d a statute

or ordina nce that imposes a

duty or prohib its an act for the benefit of a person or the public. Queen v. Dayton Coal & Iron Co. , 95 Tenn. 458, 462, 32 S. W. 460 (1895); Memphis Street Railway v. Haynes , 112 Tenn. 712, 722, 81 S.W. 374 (1904). Second, the proof must show that the injured party w as within the class of persons wh om the legislative body intended to benefit and protect by the enactment of that pa r ticula r statute or ordinance. Traylor v

. Coburn , 597 S.W.2d 319, 322 (Tenn. App. 1980) (citing Carter

v. Redmond , 142 Tenn. 258, 218 S.W. 217 (1920)). In addition to establishing negligence per se by show ing these

two eleme

nts, the plain

tiff must o f course

show that such negligence was the proximate

cause of the in jury. Brookins v. The Round Table, Inc. , 624 S.W.2d 547, 550 (Tenn. 1 981); Alex v. Armstrong , 215 Tenn. 276, 283, 385 S.W.2d 110, 114 (1964). Chase relies on Smith v. Owen , 841 S.W.2d 828 ( Ten n. App. 1992), in which the defendant’s liability was predicated on negligence per se bec ause the building code adopted by the City of Cookeville expressly prohibited the renting of a dwelling for living purposes without

a prior inspection to ascertain that its condition met certain standards specified in that code. Id. at 829-30. In addition, the proof showed th at defe

ndant did in fact rent the premises in which the plaintiff

's child su stained in

juries without making such in specti on and that an inspection would have revealed

the defect that caused the injury. Id. at 829. In so holding, the Smith Court8

found that the defendant, who had no actual knowledge of the condition that caused the injury,

was put on constructive notice of her duty by virtue of the provisions in the Cookeville building code. Id. at 831. In the instant

case, the complaint does not set forth a provision similar to the provision in Smith. However, Chase asserts that his February 9, 1996 motion to amend the complaint was to supply the pertinent provisions of the building code and that the trial court erred i n denying his proposed amendment. Rule 15 of

the Tennessee Rules of Civi l Procedu re provi des in relevant pa rt: A party may amend the party’s pleadings once as a matter of course at any time before a responsive pleading is served . . . the partymay so amend it at any time within fifteen (15) days after [the plead ing] is served. Otherwise a party may amend the party’s pleadings only by written consent of the ad verse party or by leave of court; and leave shall be f reely given whe

n justice s o requires. Tenn. R. Civ. P. 15.01. After a responsive pleading has been served, the denial of a motion to amend the

pleading s lies within the sound discreti on of the t

rial cou rt and will notbe reversed absent a showing of an abuse of that discretion. H all v. Shelby County Retirement Bd. , 922 S.W.2d 543, 546 (Tenn. App. 199 5)(cit ing Merriman v

. Smith , 599 S.W.2d 548, 559 (Tenn. App. 1979); Welch v. Thuan , 882 S.W.2d 792, 793 (Tenn. App . 19 94)). There are severa l considerations a trial judge should evaluate in determining whether to grant or

deny a mot

ion to amend. Id. Amo ng these factors are an undue delay in f iling, lack of notice to the opposing party, bad faith by the moving party, repeat ed failure to cure deficiencies by pr evious amendme nts, undue prejudice to the opposing party, and futility of amendment. Id. (citing Merriman , 599 S.W.2d at 559). In light of the factors delineated above, there is ju stification for the trial court’s denial of Chase’s motion to amend. He had previous ly ame nded his c omplaint, a nd this motio n to amendcame well into the trial of t he case. All of

the provisions of the building code were

av ailable to Chase a

t the time h

e filed h is origina l complain

t. The moti on was unt

im ely an d could unduly prejudice the defendants. The trial cou

rt did not a

buse its dis cretion

in denying Chase’s motion to amend, nor did the trial court err in refusing Chase’s special req uest for instructions. Moreover, we have heretoforenoted tha

t there w as mater

ia l evidenc e to support the jury’s finding of 50%9

comparative fault on the pa rt of th e plaintiff, thus, any error by the trial court in refusing the amendment and the requested jury instructions would be harmless error . T.R.A.P. 36(b). The next issue to be

consider ed is phra sed by Cha se as: 3. Did the learned trial judge commit reversible evidentiary rulings allowing improper questions to be asked of Barb ara Cha se, the w ife of pla intiff/a ppellant , by defe

nse coun sel? Apparently, this issue is predicated on the following trial proceedings relating to a letter written by Chase’s treating physician, Dr. O’Sullivan: Q: (By Mr. Leach) What he put in this letter is incorrect?

Mr. Gaerig: Objection, if your Honor please. It calls for a conclusion of one witness as to what another witness has said.

The Court : All right. Objection overruled. Q: (By Mr. Leach) Do you remember the question? A: No. Q: The question is this statement that Dr. O’Sullivan put in this letter of Dec ember 4 , 1992 that you told me you and your husband requested him to write where he put in there, he can

no longer propel himself in a normal wheelchair, is that true or untrue or was it trueor untrue as of December 4, 1992? A: Jim could propel himself in a wheelchair. Q: So that was untrue? A: For short d

istance s.

* * * Q: Well, let me

ask you again then. Is he telling the truth h

ere whe n he says t

hat Mr. Cha se could no longer propel himself in a normal wheelchair?

Mr. Gaerig: Your Honor -- The Court : Just a minute, please, sir -- I mean please, ma’am. Ye s, sir. Mr. Gaerig: Objectio n. She can’t testify w hat a doctor was saying. She cannot make a comment on -- The Court : Just a minute now. Again, I’m not going to argue with you, Mr. G aerig. Y ou make a n objecti on, and I ’ll rule o n it. Mr. Gaerig: My objection is --2 In his brie f, Chase asserts t hat the tr ial cour t sustaine d fiftee

n of the de

fendant s’ counsel’s general objections. Chase then procee ds to list not fifteen, but nineteen, alleged examples of such error. 10

The Court : I know wh at your ob jection is , and I ov errule

it. Mr. Gae rig: That’s fine. A: I don’t know why Dr. O’Sullivan stated it in those words, but I know that Jim could get himself in a wheelchair a short distance.

* * * The above record does not reflect er ror on the part of the trial court, but in any event, we do not see how this testimony affected thejury’s verdict or resulted in prejudice to the judicial process . T.R.A.P. 3 6(b). Th is issue is without mer

it. 4. Did

the learned Trial Judge commit reversible error in fifteen rulings sustaining general objections contrary to the Tennessee Rules of Evidence, Rule 103( a)(1)? Finally, Chase as serts tha t the tria l judge e rred in s ustaining fifteen of the defendant s’ counsel’s genera

l objectio ns. 2 The defendants, on the other hand, contend that the nature of the objections was obvious from their context. The Tennessee Rules of Evi dence p rovide a s follows: Rule103. Rulings on ev ide nce. — (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 spe ci fic ground was not apparent from the context; or (2) Offer of Proof. — In case the ruling is one excludin g evidence, the substance of the evidenc e and the specific evidentiary basis supporting admission were madeknown to the court by offer or were appa rent from the context. Tenn. R. Evid. 103. The record reveals that Chase did not make off ers of proof of any kind

on the maj ority of the objections that he asserts the trial court erred in sustaining, nor did heshow “the specific evidentiary basis supporting admission” of the exclud ed evi dence. Tenn. R. Evid. 103(a)(2). Thus, we have no way of knowing whether the evidenc e was improperly excluded. In the absence of an

offer o f proof a

nd the inc lusion of th

e testimon

y in the record, this Court cannot consider the alleged errors. Davis v. Hall , 920 S.W.2 d 213, 218 (Tenn. Ap p. 1995)( citi n g Brown v. Weik , 725 S.W.2 d 938, 948 (Tenn. Ap p. 1983); Valentine v. Conchemco, Inc. , 58811

S.W.2d 871, 876 (Tenn. App. 1979)). We also note

that some o f the objections re late to the

issue of d amages a

nd that, consequently, these ar

guments ha

ve been preter mitted. As to the r emaining objectio ns with which Chase tak

es issu e, we f

ind that in several instances the defendants’ counsel objected during a deposition and gave specific reasons for the objection, so as to preserve his objection for t he re cord. In other instances the nature of the objection was plainly obvious from the context in which th

e object ion was ma

de. In fa ct, the tr ia l court sp ecif

ically stated that in the absence of a spec ific objection, the court would presume the nature of an objec tion to be a s to the relev ancy o f the matter. In any event, Chase has not set forth that the allege d errors involving a substan

tial right more pro bably tha n not aff ected the judgmen

t or would r

esult in prejudic e to the ju dicial pr ocess. T .R.A.P. 36(

b). This is sue is with out merit. Accordingly, the judgment of the trial court is affirmed. Costs of appeal are a sse ssed against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE