IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 7, 2020

MARTHA GILMORE, EXECUTRIX OF THE ESTATE OF NANNIE SUSAN

CARPENTER V. NOL, LLC

A/K/A PREMIER RADIOLOGY

Appeal from the Circuit Court for Davidson County

No. 17C2479 Kelvin D. Jones, Judge

No. M2019-01308-COA-R3-CV

A physical therapy patient standing just outside a building was struck by the building’s

automatic door, causing her to fall and suffer broken bones. The patient sued the owner 

of the building, asserting negligence and premises liability. The owner asserted the 

affirmative defense of comparative fault. The jury returned verdicts finding both parties 

negligent and assigned more fault to the patient than to the building owner, thus barring 

the patient from any recovery. The patient moved for a new trial, arguing that the jury’s 

verdict finding her to be at fault was contrary to the weight of the evidence. The trial 

court denied her motion, and the patient appealed. We conclude that the trial judge did 

not err in its role as the thirteenth juror, but we vacate the court’s judgment finding the 

patient comparatively at fault because no material evidence was introduced at trial to 

support this aspect of the jury’s verdict. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and 

Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Edmund J. Schmidt, III, and Jackie E. Sharp, Jr., Nashville, Tennessee, for the appellant,

Martha Gilmore, executrix of the Estate of Nannie Susan Carpenter.

Raymond D. Lackey, Franklin, Tennessee, for the appellee, NOL, LLC.

05/27/2020
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OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Nannie Susan Carpenter was eighty-four year old on April 21, 2017, when she 

went to her physical therapy appointment at The Anderson Building, in Nashville. The 

Anderson Building is owned and managed by NOL, LLC a/k/a Premier Radiology 

(“NOL”). Access to the Anderson Building is controlled by a telescoping automatic door 

that slides open when a person is detected by electronic sensors. When Ms. Carpenter 

was exiting The Anderson Building following her appointment on April 21, 2017, the 

automatic door closed while she was standing just outside the threshold of the doorway. 

The impact from the door caused Ms. Carpenter to fall and suffer fractures to her femur 

and humerus bones. 

Ms. Carpenter filed a lawsuit against NOL on October 4, 2017, alleging 

negligence and premises liability as a result of an unreasonably dangerous condition. Ms. 

Carpenter sought compensatory damages, including medical costs, pain and suffering, 

and the loss of her enjoyment of life. NOL filed an answer denying liability and asserting 

comparative fault as an affirmative defense.

The parties tried the case before a jury on April 29 and 30, 2019. The jury 

returned a verdict finding that both NOL and Ms. Carpenter were negligent and that Ms. 

Carpenter had sustained damages in the amount of $500,000. The jury allocated fault 

between the parties, finding Ms. Carpenter to be 77% negligent and NOL to be 23% 

negligent. Because the jury found Ms. Carpenter to be over 50% at fault, the trial court 

entered a judgment in favor of NOL and dismissed Ms. Carpenter’s complaint. 

Ms. Carpenter moved for a new trial pursuant to Tenn. R. Civ. P. 59.06, asserting 

that the jury’s comparative fault verdict was contrary to the weight of the evidence. Ms. 

Carpenter also asserted that the court made erroneous evidentiary rulings that more likely 

than not affected the jury’s verdict and resulted in manifest injustice to her. Ms. 

Carpenter asked the court to exercise its authority as the thirteenth juror to order a new 

trial. The trial court held a hearing on June 21, 2019, to consider Ms. Carpenter’s motion 

and stated the following from the bench:

All right. The Court in this matter must consider whether the record 

contains any material evidence to support the verdict, the jury’s findings 

must be affirmed. And when sitting as the 13th juror the Court, after 

weighing the evidence of the trial court, if the Court is satisfied with the

jury’s verdict, the Court must approve that verdict. 
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The Court, after weighing the evidence, is satisfied with the jury’s 

verdict and accordingly must approve the verdict. And for that reason the

motion for a new trial is respectfully denied.

Then, in its written order, the trial court wrote: 

The Court, acting as a thirteenth juror, having considered the filings 

of the parties, arguments of counsel and the evidence submitted at trial, 

finds that he is satisfied with the jury’s verdict and Plaintiff’s motion is 

denied.

Ms. Carpenter appealed the trial court’s denial of her motion for a new trial and 

raised the following arguments: (1) that the trial court applied an incorrect standard in its 

role as the thirteenth juror and committed manifest error; and (2) that NOL offered no 

evidence in support of its affirmative defense of comparative fault, with the result that the 

jury’s verdict finding Ms. Carpenter 77% at fault was insupportable and she was entitled 

to a new trial. Ms. Carpenter made the additional alternative argument that if we 

conclude material evidence supported the jury’s verdict finding her negligent, the trial 

court committed reversible error in excluding testimony of her expert regarding whether 

Ms. Carpenter did anything before her fall that would have triggered the door to close on 

her. Ms. Carpenter passed away during the pendency of this appeal, and her executrix, 

Martha Gilmore, has been substituted as the appellant herein.

II. ANALYSIS

A. Trial Judge as Thirteenth Juror

A jury verdict is not valid until a trial judge approves it. Wells Fargo Bank, N.A. 

v. Lockett, No. E2018-00129-COA-R3-CV, 2019 WL 417998, at *3 (Tenn. Ct. App. Feb. 

4, 2019). It is the law in Tennessee that when a party moves for a new trial on the basis 

that the jury verdict is contrary to the weight of the evidence, the trial judge is to act as 

the thirteenth juror. Id. In this role, the judge “must not defer to the jury,” id. at *4, but 

“‘is under a duty to independently weigh the evidence and determine whether the 

evidence preponderates in favor of or against the verdict,’” id. at *3 (quoting Shivers v. 

Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996)). If the trial judge is not satisfied 

with the jury’s verdict, he or she “‘should set it aside.’” Cooper v. Tabb, 347 S.W.3d 

207, 221 (Tenn. Ct. App. 2010) (quoting Davidson v. Lindsey, 104 S.W.3d 483, 488 

(Tenn. 2003)); see also Murdock v. Fort Sanders Reg’l Med. Ctr., No. E2012-01650-

COA-R3-CV, 2013 WL 1460579, at *3 (Tenn. Ct. App. Apr. 11, 2013). 

Before approving a verdict, a trial judge must always weigh the evidence 

and determine that the evidence preponderates in favor of the verdict, such 

that the trial judge is “independently satisfied” with the verdict. However, 
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the trial judge is not required to expose his mental processes in exercising 

his role as thirteenth juror. “In deciding [a motion for a new trial], the . . . 

judge is not bound to give any reasons, any more than the jury itself is 

bound to do so.” He is not required to “make an express statement that the 

preponderance of the evidence supported the verdict. . . .”

Wells Fargo Bank, 2019 WL 417998, at *4 (quoting Bellamy v. Cracker Barrel Old 

Country Store, Inc., No. M2008-00294-COA-R3-CV, 2008 WL 5424015, at *3 (Tenn. 

Ct. App. Dec. 30, 2008) (citations omitted)); see also Ladd ex rel. Ladd v. Honda Motor 

Co., 939 S.W.2d 83, 105 (Tenn. Ct. App. 1996) (“The thirteenth juror rule requires the 

trial court to weigh the evidence independently, to pass upon the issues, and to decide 

whether the verdict is supported by the evidence.”).

The trial court has broad discretion in ruling on a motion for a new trial and is not 

required to provide reasons for its decision to grant or deny the motion. Cooper, 347 

S.W.3d at 221. When a trial judge approves a jury verdict without making any 

comments, the appellate court assumes the trial judge properly performed his or her duty 

as the thirteenth juror. Id. However, when a judge discusses the reasons for his or her 

decision, the appellate court reviews the reasons simply to determine whether he or she

properly considered the issues “‘and was satisfied or dissatisfied with the verdict 

thereon.’” Id. (quoting Davidson, 104 S.W.3d at 488); see also Bellamy, 2008 WL

5424015, at *10 (“[W]e must review his [or her] comments to ensure they do not 

evidence a failure to comply with the thirteenth juror standard.”); Heath v. Memphis 

Radiological Prof’l Corp., 79 S.W.3d 550, 554 (Tenn. Ct. App. 2001). The appellant has 

the burden of proving that the trial judge failed to carry out his role as the thirteenth juror. 

Bellamy, 2008 WL 5424015, at *6.

Ms. Carpenter’s estate contends that the trial judge misconceived his duty to act as 

the thirteenth juror based on the judge’s comment made during the hearing on June 21, 

2019, that he “must consider whether the record contains any material evidence to 

support the verdict, [and if there is,] the jury’s findings must be affirmed.” The “material 

evidence standard” the trial judge referenced is the standard an appellate court uses when 

reviewing a jury verdict to determine whether sufficient evidence was introduced at trial 

to support a jury’s verdict. TENN. R. APP. P. 13(d); Barnes v. Goodyear Tire & Rubber 

Co., 48 S.W.3d 698, 704-05 (Tenn. 2000). As discussed above, this is not the proper 

standard for a trial judge to apply when faced with a motion for a new trial and acting as 

the thirteenth juror. Immediately after the trial judge made this comment, however, he 

stated: 

[W]hen sitting as the 13th juror the Court, after weighing the evidence of 

the trial court, if the Court is satisfied with the jury’s verdict, the Court 

must approve that verdict. The Court, after weighing the evidence, is 
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satisfied with the jury’s verdict and accordingly must approve the verdict. 

And for that reason the motion for a new trial is respectfully denied.

 

Then, when the trial judge issued his written order denying Ms. Carpenter’s 

motion for a new trial, he wrote: 

The Court, acting as a thirteenth juror, having considered the filings of the 

parties, arguments of counsel and the evidence submitted at trial, finds that 

he is satisfied with the jury’s verdict and Plaintiff’s motion is denied.

The Tennessee Supreme Court has stated that an appellate court should consider a 

trial judge’s comments “as a whole” when determining whether a trial judge 

misconceived his or her duty as a thirteenth juror. Heath, 79 S.W.3d at 555-56 (citing 

Holden v. Rannick, 682 S.W.2d 903, 905-06 (Tenn. 1984)); see also Murdock, 2013 WL 

1460579, at *4. “Where it appears ‘from statements made by the circuit judge . . . that he 

was really not satisfied with the verdict, it becomes the duty of this court . . . to do what 

the circuit judge should have done; that is, to grant a new trial.’” Cooper, 347 S.W.3d at 

223 (quoting Cumberland Tel. & Tel. Co. v. Smithwick, 79 S.W. 803, 804 (Tenn. 1904));

see also Ladd, 939 S.W.2d at 105.

 

To prove she is entitled to a new trial, Ms. Carpenter’s estate must show that the 

trial judge “was not satisfied with the verdict or misconceived its role as the thirteenth 

juror.” Wells Fargo Bank, 2019 WL 417998, at *3; see also Mabey v. Maggas, No. 

M2006-02689-COA-R3-CV, 2007 WL 2713726, at *6 (Tenn. Ct. App. Sept. 18, 2007). 

This she cannot do. Although the trial judge initially enunciated an incorrect standard of 

review, he subsequently corrected himself and set forth the appropriate standard. The

judge then declared that, after weighing the evidence, he was satisfied with the jury’s 

verdict and, therefore, approved the verdict. A week later, the trial judge followed up 

these statements with a written order in which he repeated the proper standard of review 

and stated that he was denying Ms. Carpenter’s motion for a new trial because he was 

“satisfied with the jury’s verdict.” 

Considering the trial judge’s comments as a whole and construing them together 

with the court’s written order, we conclude that Ms. Carpenter’s estate has failed to prove 

that the trial judge misconceived his duty to act as the thirteenth juror when he approved 

the jury’s verdict and denied her motion for a new trial. See Heath, 79 S.W.3d at 556 

(stating that “a court speaks through its written orders”); see also Ladd, 939 S.W.2d at 

104 (same). 

B. Sufficiency of the Evidence
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Ms. Carpenter’s estate next argues that the evidence was insufficient to support the 

jury’s verdict finding Ms. Carpenter 77% at fault for her fall. Our Supreme Court has 

described an appellate court’s review of a jury’s verdict as follows:

When addressing whether there is material evidence to support a verdict, an 

appellate court shall: (1) take the strongest legitimate view of all the 

evidence in favor of the verdict; (2) assume the truth of all evidence that 

supports the verdict; (3) allow all reasonable inferences to sustain the 

verdict; and (4) discard all [countervailing] evidence. Crabtree Masonry 

Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978); Black v. 

Quinn, 646 S.W.2d 437, 439-40 (Tenn. Ct. App. 1982). Appellate courts 

shall neither reweigh the evidence nor decide where the preponderance of 

the evidence lies. If the record contains “any material evidence to support 

the verdict, [the jury’s findings] must be affirmed; if it were otherwise, the 

parties would be deprived of their constitutional right to trial by 

jury.” Crabtree Masonry Co., 575 S.W.2d at 5.

Barnes, 48 S.W.3d at 704-05; see also Hall v. Derrick, No. W2003-01353-COA-R3-CV, 

2004 WL 2191016, at *3 (Tenn. Ct. App. Sept. 24, 2004) (holding that when an appellate 

court reviews a jury’s verdict, it “may not reweigh the evidence or make credibility 

determinations, and it must construe the evidence in the light most favorable to the 

verdict.”). A jury verdict will not be set aside if there is any material evidence to support 

the verdict. TENN. R. APP. P. 13(d). “Material evidence is ‘evidence material to the 

question in controversy, which must necessarily enter into the consideration of the 

controversy and by itself, or in connection with the other evidence, be determinative of 

the case.’” Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 422 (Tenn. 2013) 

(quoting Knoxville Traction Co. v. Brown, 89 S.W. 319, 321 (Tenn. 1905)). This court 

has described “substantial and material evidence” as “‘such relevant evidence as a 

reasonable mind might accept to support a rational conclusion and such as to furnish a 

reasonably sound basis for the action under consideration.’” Jones v. Bureau of 

TennCare, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002) (quoting Papachristu v. Univ. of 

Tenn., 29 S.W.3d 487, 490 (Tenn. Ct. App. 2000)). When reviewing the trial record, we 

must “assume the truth of all evidence that supports the verdict and discard all 

countervailing evidence.” McLemore ex rel. McLemore v. Elizabethton Med. Inv’rs. Ltd. 

P’ship, 389 S.W.3d 764, 776 (Tenn. Ct. App. 2012) (citing Barnes, 48 S.W.3d at 704). 

“[I]f the record contains any material evidence to support the verdict the jury’s findings 

must be affirmed.” Id. (citing Barnes, 48 S.W.3d at 704).

In addition to finding Ms. Carpenter negligent, the jury found NOL was negligent, 

and this aspect of the jury’s verdict has not been appealed. The only portion of the 

verdict Ms. Carpenter’s estate is challenging is the jury’s verdict finding that Ms. 

Carpenter was negligent and bore some responsibility for her fall. NOL asserted the 

affirmative defense of comparative fault. When a defendant asserts a plaintiff’s 
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comparative fault, “the reasonableness of the plaintiff’s conduct in confronting a risk 

comes into play.” Ayrhart v. Scruggs, No. M2003-00453-COA-R9-CV, 2004 WL

2113064, at *9 (Tenn. Ct. App. Sept. 21, 2004); see Hall, 2004 WL 2191016, at *4 

(stating that in comparative fault cases, plaintiff’s reasonableness must be judged by 

standard of “ordinarily prudent person” in the circumstances). To prove Ms. Carpenter 

was negligent, NOL was required to “present some material evidence that the conduct of 

[Ms. Carpenter] was a proximate cause of the accident.” Whaley v. Wolfenbarger, No. 

E1999-02518-COA-R3-CV, 2000 WL 116055, at *2 (Tenn. Ct. App. Jan. 28, 2000). “‘In 

Tennessee, proximate cause has been described as that act or omission which 

immediately causes or fails to prevent the injury; an act or omission occurring or 

concurring with another which, if it had not happened, the injury would not have been 

inflicted.’” Id. (quoting Tenn. Trailways, Inc. v. Ervin, 438 S.W.2d 733, 735 (Tenn. 

1969)).

The evidence presented at trial included the surveillance video from The Anderson 

Building showing Ms. Carpenter leaving the building through the automatic door and 

falling to the ground after the sliding door came into contact with her. The video reveals

that as Ms. Carpenter walked towards the automatic door, the telescoping sliding door 

opened, and she began walking through the doorway. Ms. Carpenter stopped in the path 

of the sliding door and placed her hand on the doorjamb for close to ten seconds before 

she continued through the doorway. She then stopped just past the threshold and was 

standing close to the doorjamb for about two seconds when the sliding door began 

closing and came into contact with Ms. Carpenter, causing her to fall over and hit the 

ground. 

Brian Mills, a mechanical engineer, testified as an expert on behalf of Ms. 

Carpenter. Mr. Mills inspected the automatic sliding door at issue and testified that the 

door has two different types of sensors: presence sensors and motion sensors. Mr. Mills 

explained:

Presence means that if I’m standing in the way of the door in the 

beam of its sight, the door will remain in an open position because it thinks 

I want to walk through.

The motion detection is for when I’m approaching the door, that it 

detects my motion, causes the door to open so I can pass through it. When 

it no longer detects my motion, the door closes behind me.

Mr. Mills testified that the door’s motion detection sensors worked properly. However, 

he explained, the presence detection sensors located above the doorway did not detect 

someone standing immediately adjacent to the doorjamb and failed to satisfy the industry 

standard. Mr. Mills testified that “the presence detection zone ended about twelve inches 

from the inside of the doorjamb.” Mr. Mills explained the importance of this: “[I]f I’m 
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standing right here adjacent to the door, the door does not recognize me. So the door is 

going to respond and close.” According to Mr. Mills, the presence detector sensors’ 

failure to detect Ms. Carpenter outside their detection zone caused the automatic door to 

close and strike Ms. Carpenter.

Q. Mr. Mills, why did the door come into contact with Ms. Carpenter on 

April 21, 2017?

A. Because the sensors didn’t recognize that she was standing in the door.

Q. Had the sensors been working as it’s supposed to, what should have 

happened?

A. The door would have remained open until she left the safety zone.

Mr. Mills testified that the industry standard required the presence sensors to 

“match the whole open width of the door.” As Mr. Mills explained, “[I]f I’m standing 

right here adjacent to the door, the door does not recognize me [as it should]. So the door 

is going to respond and close.” He further testified that the industry standard requires 

automatic doors to remain open for at least thirty seconds when a presence sensor is 

triggered. The surveillance video shows that the total length of time Ms. Carpenter spent 

passing through the doorway, including the ten seconds during which she stopped and 

leaned against the doorjamb and the following two seconds when she was hit by the 

sliding door, was less than thirty seconds.

NOL’s designated representative, Eddie Schmidt, testified at the trial by 

deposition. Ms. Carpenter’s attorney asked Mr. Schmidt, “If the doors are working 

properly, do you agree that the doors should not contact and injure a pedestrian walking 

through the doorway?” Mr. Schmidt responded, “I would think that’s right.” 

Ms. Carpenter testified at the trial as well. She testified that she was at The 

Anderson Building on April 21, 2017, for an appointment with a physical therapist. She 

testified that she had been having trouble with her balance but that she had no problems 

walking. The surveillance video shows that when Ms. Carpenter was knocked over by 

the sliding door, she was standing solidly on both legs and did not appear unbalanced.

The jury was instructed on the law of negligence and returned verdicts finding that 

both NOL and Ms. Carpenter were negligent. The jury found Ms. Carpenter suffered 

damages in the amount of $500,000 and assigned 23% fault to NOL and 77% fault to Ms. 

Carpenter. Because Ms. Carpenter was found to be more at fault than NOL, the trial 

court granted judgment to NOL and dismissed Ms. Carpenter’s complaint. See McIntyre 

v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992) (holding that plaintiff can recover for 

defendant’s negligence only if plaintiff is found to be less negligent than defendant). 
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Ms. Carpenter’s estate argues that no evidence was introduced showing that Ms. 

Carpenter was negligent. We agree. NOL contends that the jury could have found Ms. 

Carpenter was negligent based on the surveillance video. However, our review of the 

video convinces us that Ms. Carpenter did nothing that could have contributed to her 

being struck by the automatic door. The evidence showed that the industry standard 

required the automatic door to remain open for thirty seconds when a presence sensor is 

triggered, and in this case the door was open for less than thirty seconds when it began to 

close and knocked Ms. Carpenter over. No evidence was introduced that NOL had 

posted any notices near the doors warning visitors against standing in any particular blind

spots near the automatic door to avoid being struck by the door. Moreover, no evidence 

was introduced that Ms. Carpenter knew or should have known that the automatic door 

would close if she stood too close to the doorjamb.

In the absence of any material evidence from which the jury could have 

determined that Ms. Carpenter engaged in conduct contributing to her fall or failed to act 

in such a way that she could have prevented her fall, we vacate the trial court’s decision 

finding Ms. Carpenter liable for comparative fault and remand for a new trial.

1

III. CONCLUSION

The judgment of the trial court is vacated, and this matter is remanded for a new 

trial. Costs of appeal are assessed against the appellee, NOL, LLC, a/k/a Premier 

Radiology, for which execution may issue if necessary.

________________________________

 ANDY D. BENNETT, JUDGE

 

1

In light of our holding that there is no material evidence to support the jury’s verdict finding Ms. 

Carpenter at fault for negligence, we need not address Ms. Carpenter’s alternative argument that the trial 

court erred in excluding testimony by her expert about whether she did anything to trigger the closing of 

the automatic door.