# FILED
December 2, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
AN NETTE DUB OSE, ) ) Plaintiff/Appellant, ) Madison Circuit N o. C-94-321 ) VS. ) A ppeal No. 02A 01-9705-CV-000 96 ) DEBBIE RAMEY, ) ) Defendant/Appellee. )
APPEAL FROM THE CI RCUI T COUR T OF MA DISON COUN TY

AT JACKSON, TENN ESSEE THE HONORABLE FRANKLIN M URCHISON , JUDGE

THOMAS K. McA LEXA NDER HILL BOREN, P.C. Jackson, Tennessee Attorney for Appellant

JONA THA N O. STEEN SPRA GINS, BA RNETT, CO BB & BUT LER Jackson, Tennessee Attorney for Appellee

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: DAVID R. FA RMER, J. HOLLY K IRBY LIL LA RD, J. Plaintiff/Appellant, Annette D ubose ( “Dubose”), appeals the judg ment of the trial2

court denying her motion for a new trial and specifically finding that the jury verdict and the judgmentprevious ly entered in this cas e were pr oper and correct. For reasons hereinafter stated, we affirm the judgment of the trial cour t.

Procedural H istory Dubose filed this lawsuit in the Madison Count y Circuit Court alleging that Debbie Ramey (“Ramey”) was neg ligent (1 ) in keeping and maintaining a mix breed Chow which she knew or

had reason to kn ow had a propensity for biting a nd (2) in ke eping an animal in an area where persons law fully upon Ramey’s pr

operty would come into co ntact wit h the dog. Dubose further alleged that Ramey was negligent in maintaining her garage in such
a manner as to pre sent a hazar d to persons l awfully upon her propert y. R ame y f iled an
answ erdenyin g liabil ity or ne gligenc e in any way and clai ming that Dubos e was barr ed from recover

y under the l egal doctri nes of comparative fault, as s umption of the risk, sudden emergency , and unavoidabl e accident. Thi s case c ame to trial by jury on Novembe r 18, 199 6, with the Honorab le Frankli n Murchiso n presid ing.

At the conclusi on of the trial, the jury announced a verdict finding Dubos e 100% at fault. The trial court approved the verdi ct and entered a j udgment accordi ngly.
Thereafter, Dubose filed a moti on for a new tr ial on the g rounds that there was no legal or ma terial ev idenc e to support the jury’s verdict , and that the jur y’s verdict in t he matter was contrary

to the wei ght of the evi dence presented at trial. Follow ing a heari ng on the motion for a new trial, thetrial court denied Dubose’s motion, finding that the jury verdict and the judgment previousl y entered i n this case were pr ope r and correct. This appeal ensued.

The issues on appeal are as follows: (1) W hether the trial court abused itsdiscretion in overrul ing Dubose’ s motion for a new trial which requested relief on the bas is that the jury’s verdict

was contr

ary to the weight of the evidence; and (2) whether there is material evidence to support the jur y’s verdict.3 Facts On November 29, 1993, Dubose, al ong wit h her sister-in-law , Mrs. Dor othy Johnson (“Johnson”), came to the home of Ramey in order topresent aChristmas Around the W orld part y. This was a sales presen tation whereby Dubose and Johnson displ ayed Christmas decorations and other merchandis e to Ramey and her guests.

Dubose and Johnson rode tog ether and arriv ed at Ramey’s home between 6:15 and 6:30 p.m. on th is da y. Johnson pulled the car into Ramey’s dr iveway without ent ering her garage. When Dubose arri ved, Ramey ’s dog, Bo- Bo, began barki ng, an d Ramey came out of her home into the g arag e. After quieting Bo-Bo, Ramey came to the car where Dubose and Johnson were unl oading their merchandise for

the party. She helped them carry the merchandise into the house. Bo-B o was tied to the garage wall to prevent him from escaping outside into the weather, which was rai ny and cold. Bo-Bo was wearing a cast on his l eg from the should er down bec ause he had been shot.
Ramey led Dubose and J ohnson through the garage past Bo-Bo and through the door that led in to Ra mey’s hom e. Ra mey s topp ed and held Bo-Bo a s Dubose and Johnson entered thehouse.
Approximately five guest s attended the part y, e xcluding Dubose and Johnson. Each of the guests was advised to use the front door because of Bo- Bo’s ill temperament. That night, the g uests at the par ty had numerous co nversations about Bo-Bo. The se conversati ons centered around th e fact that Bo-Bo had been s hot and that the g uests needed to use caution around Bo-Bo. However, Dubose and Johnso n contend that they heard no such conversations con cerning thedog or his tendencies to betemperamental.

After the presentation was completed, Ramey helped Dubose and John son carry the merchandise to their car. After loading the car, Dubos e realiz ed that she had left her sweater in Ramey’s ho me. Ramey cont ends that she tol d Dubose to stay in the car while4

she went to retrieve t he sweater. Dubose, how ever, ins ists tha t she he ard no such utterance from Ramey. The te stimony of Mr s. Be tty Jones indicated that Ramey was, indeed, coming in fro m the garageto retrieve Dubose’s sweater when t he i nciden t occurred.

Dubose entered th e garage an d stepped over Ramey’s weed eater that was lying
on the garage floor

. As Dubose st epped over the weed eater, Bo-Bo grow led and lunged at her. Duboseproceeded to back away fro m Bo-Bo, whe reupon she fell over the weed eater and broke her w rist. As her left leg swung i nto the air, Bo- Bo bit Dubose on the leg.

Dubose was ta ken t o the eme rgenc y room where the i njur y to he r wr ist wa s tempo rarilytr eated by Dr . Kelly B allard. Thereafter, Dubose soug ht the advic e and treatment of Dr. J ames Craig at The Jackson C linic.

Discussion In review ing a judg ment based upon a jury verdict, this Court is n ot authoriz ed to reexamine the weight of the evidence, but may set asi d e a jury verdict only if there is no material evidence to

support the verdict. T.R. A.P. 13(d); Bynum v. Hollowell , 656 S.W.2d 400, 402 (Tenn. Ct. App. 198 3); Cohen v. C ook , 462 S.W .2d 502 (Tenn. Ct. App . 1969). In determining whether there is material evidence to support the verdi ct, we are required to take the stron gest leg itimate vi ew ofall the ev idence in favor of the verdic

t, to a ssume the truth of all that tends to suppor t it, to dis regard all to the contrar y, and to allo w all reasonable inferences to su stain the verdict. Bynum v. Hollowell , 65 6 S.W.2d at 402; Budiselich v. Rig sby , 639 S.W.2d 663 (Tenn. Ct. App . 1982). If there is any mater ial evidence to support the v erdict, it must be affirmed. City of Chattanooga v. Ballew , 354 S.W.2d 806, 809 (Tenn. Ct. App. 1961); Bynum v. Hollowell , 656 S.W.2d at 402. We will first address Dub ose’s contention regarding the apportion ment of fa ult concerning her claims of negligence against Rame y as we f ind s uch i ssue to be disp osit ive of this appeal. In order to affirm the jury’s verdict in favor of Ramey , the questi on that we must resolve is whether there is material evidence to support the jury’s verdict that the fau lt5

attributable to Dubose was equal to or greater t han the fault attri butable to Ramey

. Eaton
v. McClain , 891 S.W .2d 587 (T enn. 199 4). If so, Du bose is pre clud ed f rom r ecove ry. McIntyre v. Balenti ne , 833 S.W .2d 52 (1992). In Eaton , our Supreme Co urt setforth the following nonexhaustiv e l is t of pertinent factor s to evaluat e in assig ning percent ages of fau lt to each part y:

(1) The relative closeness of the causal rel ationship between the conduct of the defendant and the injury to the plainti ff; (2) the reasonableness

of the party’s conduct in confronting a risk, such as whether the part y k new of the ri sk, o r sho uld h ave known of it; (3) the ex tent to w hich the defendant failed to reasonably utili ze an existi ng opportunit y to avo id the injur

y to the plaintiff; (4) the existenc e of a sudden emergency requiri ng a hast y decision ; (5) the si gnificance of w hat the party was attempting to ac complish by the conduct, such as an attempt to save another’s life; and (6) the party’s particular capacities, such as age, maturity, training, education, and so forth. Id. at 592.

Based on th e ev iden ce pr esen ted, we conc ludethat the m ost impo rta nt fa ctor to consider is number two--whether D ubose was or should have been aware of the risk involved in entering the garage w ithoutthe accompanimen t of Ramey and whether such a risk was reasonable.

As mentioned above, Dubose clai ms that Ramey was negl igent (1) in keeping and maintaining Bo-Bo, whi ch she knew or had reason t o know had a pr opensity for

biting, and (2) in keeping Bo-Bo in an area where per sons lawfull y upon her property would come into contact with hi m. Ramey ass erts comparati ve fau lt and assumption of the r isk as defenses to these cl aims.
The doctrine of assumpt ion of the risk, also known as volenti non fit injuria , is one in which a p laintiff may not r ecover for an injury

to which he or she assent s, i.e. , that a person may

not recove r from an injur y receiv ed when he or she voluntarily exposes himself
or herself to a know n and appreciated danger. See Perez v . McConkey , 872 S.W.2d 897 (Tenn. 1994). Historically, the requirements for t he de fenseof volenti non fit injuria have been that: (1) theplaintiff has knowledg e of the facts consti tuting a dang erous conditi on;6

(2) he or she knows the condition is dangerous; (3) he or she app reciates t he nature or extentof the danger; and (4) he or she volunta rily ex poses himself or herself to the danger. Id. With the onset of our supreme cour t’s decisi on i n Perez , the doctrine of implied assumption of the risk has been abrogat ed and maintains no i ndependent exis tence. Howeve r , under the scheme of c omparative fault adopted in McIntyre , the principle s contained wi thin assumption o f the risk sur vive a s factors to be considered by the jury in apportioning degrees of fault bet ween the part ies. Eaton v. McClain , 891 S.W.2d 587, 592 (Tenn. 1994).

After having stepped over the weed eater , having had Bo-Bo barkat Johnson and her when they drove up to Ramey’s house, havi ng observed Bo -Bo’s siz e and the fact that he was plac ed on a cable in the garage, having seen the cast on B o-Bo’s leg and bei n g told that he had been shot , having watched as Ramey qui eted and held Bo-Bo by his collar while Dubose and Johnso n passed throug h the garage, and having been present w hen BoBo’s ill temperament was the topic of a variety of conversations at the party, Dubose proceeded into the garage unattended by R amey. Under the circumst ances, we conclude that there was material evidence to support the jury’s verdict that Dubose was equal to or greater than 50% at fault by

confronting th e r isk of entering the garag e unattended by Rame y. In view

of the fact that Tennessee has adopted the doctri ne of comparativ e fault, whether the jury found Dubose to be 100% or 50% at fault is inconsequential. Th ere was material evidence to

support the finding that D ubose, by ass uming a know n risk, was equal to or gr eate r th an 50 % at faul t and , the reby , to bar her cla im fo r re lie f.

Dubose also claims

that Ramey w

as neglig ent in maintaini ng her gar age in such a manner as to prese nt a hazard t o persons law fully upon the D efendant’s property by leavi ng he r weed eate r on th e gara ge fl oor. This is a cla im ba sed o n pre mise s liab ility.

Under premi ses li abili ty, a

premi ses owner

has a duty t o maintain his or her premi ses in a reasonably safe and suitable condition; this general duty

includes the responsibil ity

of either removing or warning against any latent danger

ous conditions

on the1 W e note t hat our supreme court has grant ed permissi on to app eal con cerni ng the i ssue of t he int erpret ati on of t he open and obv ious r ule i n Tennessee in Coln v. Cit y ofSavannah , No. 02A01-9507- CV-00 152, 1996 W L 54465 2 (Ten n. Ct. App. Sept. 25, 1996) p e r m. app. grant ed (Feb. 3, 1997). 7 premises of which theowner is aware or

should have been aware th rough the exercise of reasonable care. Eaton v. McClain , 891 S.W.2d 587, 593-94 (Tenn. 1994) ; Cham bliss v. Shoney’s Inc. , 742 S.W.2d 271 (Tenn. Ct. App. 1987); Teal v. E.I. DuPont de Nemours and Co. , 728 F.2d 799 (6th Cir. 1984). The open and obv ious rule i s one that hasbeen utiliz ed in cases dealing primarily with premises liability. Historically, the open and obvious rule is
one whereby

an invite e can be barred from recover y for injur ies resulti ng from adanger as readilyapparent to the invi tee as to the ow ner of the premises . With the adoption of comparative fault principl es, the law concerning the effects of the open and obvious rule
on a plaintiff’s cl aim for recovery is somewhat unsett led in Tennessee. One line of cases deals wit h the open and obvious rule as a factor to be considered within the scheme of comp arat ive fault. See Cooperwood v. Kroger Food Stores, Inc. , No. 0 2A01-9308-CV00182, 1994 WL 7 25217, at *2- 3 (Tenn. Ct. App. Dec. 30, 1994); Broyles v. City of Knoxville , No. 03A01-9505- CV-00166, 1995 WL 511904, at *3-4 ( Tenn. Ct. App. Aug. 30, 1995); Shope v. Radio Shack , No. 03A01-9508- CV-00288, 1995 WL 733885, at *2- 3 (Tenn. Ct. App. D ec. 7, 1995). A separate line of cases adh eres to the principle that the open and obvious rule is a complete bar to aplaintiff’s cl aim for relief. See Jones v. Ex xon Corp. , 940 S.W.2d 69, 71-72 (Tenn. Ct. App. 1996); Valentine v. W eatherford , No. 02A01- 9511-CV-00264, 1996 WL 741878, at *3 (Tenn. Ct. App. Dec. 31, 1996) ; Tracy v. Exx on Corp. , No. 02A01-9512- CV-00277, 1996 WL 741876, at 2 (Tenn. Ct. App. D ec. 31. 1996); Suddath v. Parks , 914 S.W .2d 910, 914 (Tenn . Ct. App. 1995). 1

In this case, it is undisputed that Dubose saw the weed eater

when she ente red the garage, and therefore, encounter ed an open and obvi ous danger. Question: After

you got y

our sister-in-law ’s car load ed, what happened after that? Answer: [I] realiz ed then that I did not have my sweater. A nd I said, “I’m

going back and get my sweat er.” And I s tepped across t he weed eat er. And a s I stepp ed acros s, I looke d up, th e dog growl ed , and this--and I stopped. . . Question: Now, when you went back in (to the g arage), you stepped over

the weed eater ; is that ri ght?8

Answer: Yes, sir

. W hich line of cases we follow conc erning the interpretation of th e open and obvious rule is of no consequence. The end result i s the same. Reg ardless of w hether the open and obviousrule is a factor to be con sider ed under comparati ve fault or a complete bar to plaintiff’s recovery, Dubose is barred from recovery because there was material evidence from which thejury c ould reasonably find Dubose equal to or gre ater than 50% atfault in this matter.

The trial court entered a judgment in fa vor of Ramey because the jury found Dub ose to be equal to or

greater t han 50% at fault in t his incident . In fact, the jur y found Dubose to be 100% at fault. W e affirm the judgment of the trial cour t denying Dubose’s moti on for
a new tri al and affirming the jury verdict because the record contains material evidence to support a verdic

t of equal to or

greater t han 50% fault on the par t of Dubo se. As mentioned above, in view of the fact that Tennessee has adopted the doctri ne of modified comparative fault, it is of no consequence w hether the jury found D ubose to be 100% at fault or 50% at fault. In any event, there was material ev idence to support the jury’s verdict that Dubose was 50% at fault or greater and , thereby, to bar her cl aim for relief.

Denial of M otion fo r a New Trial Trial courts are afforded broad discretion in procedural matt ers in order to expedite litigati on and to p reser

ve fund ame nta l rights

of the parties. This Court w ill not rev erse a discretionary judgment of the tr ial court unl ess it affirmatively appears that such dis cretion has been explic itly abus ed to great injusti ce and injury of the party complaining. See T.R.A.P. 36(b); Douglas v . Estate of Robert son , 876 S.W.2d 95, 97 (Tenn. 1994); Bruce
v. Bruce , 801 S.W.2d 102, 107 (Tenn. Ct. App . 1990); Esst man v. Boyd , 605 S.W.2d 237, 240-41 (Tenn. Ct. App. 1980).

After an examination of the record, we find no abuse of discret ion by the trial court in denying Dubose’s motion f or a new tri al. Dubose has made no showi ng that the tr ial court abused its discretion in denying her motion for a new trial, much less an abuse th at9

rises to the level of a great injustice or injury to her. The record evinces suff icient evidence forthe trial judge to deny the motion for a new trial. W e affirm the actio n of the trial court in overruling Dubose’s motion for a new trial.

Frivol ous A ppeal Ramey asser

ts that Dubose’s appeal is frivo lous and that she should be aw arded damages in accordance with T.C.A. § 27-1-122 (1980 ). We are not persuad ed and do not find this appeal to be wholly insubsta ntia l or br ough t sole ly for the p urpo se of dela y. Accordingl y, we decline to aw ard Ramey damag es for frivol ous appeal.

Conclusion The tria l cour

t’s j udgmen t affirmi ng the v erdict of the jury and denying Dubose’s motion for a new tr ial is affirmed. Costs are tax ed to the Appellant , for which execution may is sue i f ne cess ary.
HIGHERS, J. CONCUR:
FARMER, J

.
LILLARD, J.