### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 3, 2000

Session LINDA K. PLUNK, ET AL 

### . v. NATIONAL HEALTH INVESTO RS, INC.

Appeal from the Circuit Court for Lawrence County No. CC-381-97 Robert L. Jones, Judge

No. M1999-01596-COA-R3-CV - Filed June 7, 2002

This appeal involves a nursing home visitor who injured herself by stepping into a grassy depression in the building’s lands caping. T he visitor and her husband filed suit in the Circuit Court for Lawrence County alleging that the nursing home’s owner had failed to maintain the premises in a reasona bly safe co nditi on. A jury apportioned sixty percent of the fault to the nursing home and fortypercent to the visitor an d awarded the visitor $40,000 for medical expenses and pe rmanent impairme nt. Both parties filed post-trial motions after the trial court entered a $24,000 judgment for the visitor. The v isitor and her husband sought a new trial or an additur because the jury had not awarded damages for pain and suffering. The nursing home filed a Tenn. R. Civ. P. 50.02 motion for a judgmen

t in acco rdance with its moti on for a d

irected verdict . The tria

l c ourt deni e d the nursing home’s motion and suggested a $5,000 additur. The nursing home accepted the additur, and bothparties a

ppealed . The visit

or asser ts that the trial court erred by failing to grant a new trial, and the nursing home asserts that the trial court erred by denying its Tenn. R. Civ. P. 50.02 motion. We have determined that the trial courterred by denying the nursing home’s Tenn. R. Civ. P. 50.02 motion because

it was not r

easonab ly fores eeable

that visitors would be walking on the grassy area where th e plaintif f fell. Accordin gly, we r

everse the judgme

nt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and P ATRICI A J. C OTTRELL , J., joined. Randy Hillhouse, Lawrenceburg, Tennessee, f or the appellants, Linda

K. Plunk and Billy M. Plunk. William C. Moody, Nashville, Tennessee, for the appellee, National He alth Investors, Inc.
OPINION
I.
Linda Plunkand her husband live in Lawrenceburg. On Nove mber 17, 1996, they decided to visit Ms. Plunk’s mother who was residing at the old Scott Hospital that was being operated as a nursing home by National Health Investors, Inc. (“NHC Healthca re”). While Ms. Plunk visited1 $40,000 [total damages] × 60% [NHC Healt hcare’ s fa ult ] = $24,000.
2 The trial court stat ed that t he award for pain and suff ering “shoul d have been equal to t he amount awarded (con tinue d...) -2- her mother, Mr. Plunk drove to Wal-Mart. Ms. Plunk bid her mother good-bye when she saw Mr. Plunkdrive back to the nursing home. After her mother expr essed an interest in seeing Mr. Plunk, Ms. Plunk told her to look out her window and that she would have Mr. Plunk waive to her as they drove away.
After Ms. Plunk left the building, she motioned her hu sband to pu ll around the circular drive to get closer to the window to her mother’s room. Th en, inst ead of getting into the couple’s automobile, Ms. Plunk stepped off a concrete walkway leading to the c ircular drive, ov er the a sphalt curb of the dri v eway, and onto a small grassy area that was pa rt of the landscaping adjoining the building. She walked closer to her mother’s window and waived to her mother w hile Mr. Plunk waivedfrom the SUV. As Ms. Plunk walked back toward her automobile, she steppe d in a depress ion in the g

rass and fell, bre aking both

of her a nkles.
Ms. Plunk was hospitalized for ten days and was required to undergo surgery to repair her rightankle. After she was released f rom the hospital, she spent three weeks at a rehabilitation facility undergoing therapy. She was at first confined to a wheelchair, but she eventually progressed to a walker and then to a cane. Ms. Plunk’s injuries have lef t her per manently impaired , and it is unlikely that her right ankle will ever regain its full range of motion.
The Plunks file d suit aga inst NHC He alth care in the Circuit Court for Lawrence County, alleging that the c ompany ha d failed to maintain its premises in areasonably safe condition. NHC Healthcare

responded by insisting that it had breached no duty it owed to Ms. Plunk un de r the circumst ances. The trial court

submitted the case to a jury after denying NHC Healthcare’s motions for a directed verdict at

the close of the pla intiff’s case and at the c lose of all the evidence. The jury determinedthat Ms. Plunkhad incurred $35,000 in medicalexpenses and assessed her damages for permanent

impairment

at $5,000. H owever , the jury made no a

ward to Mr . Plunk for

the alleg ed loss of Ms. Plunk’s society and services and specific ally foun d that Ms. Pl unk “did n ot suffe

r any pain and suffer ing, loss of

capaci ty for en joyment of

life, [or ] past disf igureme nt, and did not

suffer any pain and suffering, loss of capacity for enjoyment of life, a nd disfigurement for the future.” The jury also allocated sixty percent (60%) of the fault to NHC Hea lthc a re and forty percent (40%) of the fault to Ms. Plunk. Accord

ingly, the trial cou rt entered a jud gment in Ms. Plunk’s favor for $24,000. 1
Bothparties f

iled timely

post-tria l motions. Ms . Plu nk mov ed for an additur, or in the alternative a new trial, on the ground that the v erdict w as incons istent and inadequa te beca use it did notinclude an awar

d for pain and suff

ering. N HC Health

care f iled a Te nn. R. Civ. P. 50.02 motion f or a jud gment in accordance with its motions for directed verdict. The tria l court denied NHC Healthcare’s motion as w ell as Ms. Plunk’s motion for a new trial. However, the trial court suggested a $5,000 additur 2 which NHC Healthcare acce pted. Both parties have appealed, attacking2 (.. .continued)

for p erm ane nt im pairm ent.”

3 Mr. Plunk has not appeale d from the jury’s verdict reject ing his c laims agai nst NHC Healthcare. -3- the judgment f

rom opposite direc tions. Ms. Plunk insists that the trial court should have granted a new tria l becaus e the damage award is too low. 3 For its part, NHC Healthcare insists that the trial court erred by failing to grant its motion for a directed verdict bec ause the evidence does not establish that it bre ached a

ny duty of c are it

owedto Ms. Plunk. If NHC He althcar e preva ils, Ms. Plunk’s argumen

ts regar din g the inadequacy of the damage awar d become largely academic. Accord ingly, we will take up NHC He althcar

e’s issue first.
II.
Tenn. R. Civ. P. 50.02 permits parties who have moved unsuccessfully for a directed verdict to move after

the verdict “to have the verdict and any judgment enter ed thereon set aside and to have judgmententere d in accordance with the party’s motion for

a direc ted verd

ict . . ..” Appellat

e courts use the same standard for reviewing the denial of a

Tenn. R. Civ. P. 50.02 motion that they use for reviewing the denial of a Tenn. R. Civ. P. 50.01 motion for a directed verdict. Holmes v. Wilson , 551 S.W.2d 682 , 685 (Te nn. 1977) . Accor

dingly, ap

pell ate courts do not weigh the evidence, Conatser v. Clarksville Coca-Cola Bottling Co. , 920 S.W.2 d 646, 647 (Tenn. 199 5); B ent on v. Snyder , 825 S.W.2d 409, 413 (Tenn. 1992), or evaluate the credibility of the witnesses. Benson v. Tennessee Valley Elec. Coop ., 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Instead, they review the e vi dence most favorably to the party against whom the motion is made, give that party the be nef it of all reasonable inferences fr om the evidence, and disregard all evidence contrary to that party’s position. Alexander v. Armentrout , 24 S.W.3d 267, 271 (Tenn. 2000); Eaton v. M cLain , 891 S.W.2d 587, 590 (Tenn. 1994). Granting a Tenn. R. Civ. P. 50.02 motion is appropriate only when the evidenc e i s insufficient

to create an issue for the jury to decide, White v. Vanderbilt Univ. , 21 S.W.3d 215, 231 (Tenn. Ct. App. 19 99); Underwood v. Waterslides of Mid- America, In c. , 823 S.W.2d 171, 176 (Tenn. Ct. App. 1991), or when reasona ble minds can reach only one conclusion. Williams v. Brown , 860 S.W.2d 854, 857 (Tenn. 1993); Crosslin v. Alsup , 594 S.W.2d 379, 380 (Tenn. 1980). A jury’s ve

rdict should not be s upplante d under T enn. R. Civ. P. 50.02, e ven if the

facts ar e undisputed, when reasonable persons could draw conf licting conclusions fromthe fac ts. Gulf, M. & O.R.R. v. Underwood , 182 Tenn. 467, 474, 187 S.W.2d 777, 779 (1 945); Pettus v. Hurst , 882 S.W.2d 783, 788 (Tenn. Ct. App. 1993).
III.
NHC Healthcare premised its Tenn. R. Civ. P. 50.02 motion on the argument that it did not owe a duty to Ms. Pl

unk to main

tain its la ndscaping in a way

that it mad

e it safe for her to traverse. This issue raises a legal question because determining the existence and extent

of one pe rson’s du ty-4-

to another is a question of law to be decided by the courts. Staples v. CBL & Assocs., Inc. , 15 S.W.3d 83, 89 (Tenn . 2000); Green v. Sacks , 56 S.W.3d 513, 519 (Tenn. Ct. App. 2001).

Owners and occupiers of busine ss premise s are not insurer s of the sa

fety of th eir customer s, potential customers, or the general public. McClung v . Delta Sq uare Ltd. P’ship , 937 S.W.2d 891, 902 (Tenn. 1 996); Basily v. Rain, Inc. , 29 S.W.3d 879, 883 ( Tenn. Ct. A pp. 2000) . They ha

ve only a duty to use reasonable care to protect their c ustomers from unreas onable risks of harm. Rice v. Sabir , 979 S.W.2d 305 , 308 (Te nn. 1998) ; Hudson v. Gaitan , 675 S.W.2d 699, 703 (Tenn. 1984). This duty inclu des mainta ining the p

remises in a reas onably sa fe cond ition either by removing or repairing potentially dangerous conditions or by helping customers avoid injury by warning them of the existence of dangerous conditions that cannot, as a pra ctical matter, be removed or repaired. Blair v. Ca

mpbell , 924 S.W.2 d 75, 76 (Tenn. 1996 ); Basily v. Rain, Inc. , 29 S.W.3d at 883. A duty to act with due care arises when the risk of

harm bec omes unre asonable , and a ri sk of harm bec omes unre asonable “if the f oresee able pro

bability and grav it y of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in a l ternative conduc t that woul d have prevented the harm.” Rice v. S ab ir , 979 S.W.2 d at 308; McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995). In determining whether a risk of har m is unreasonable, the courts consider
the foreseeable probability of the harm or inj ur y occurring; the possible magnitude of the potential harm or injury; the imp ortance or social va lue o f the activity engaged in by defendant; the usefulne ss of the conduct

to defendant; the feasibility of alternative, safer conduct and the relative costs and burdens associated

with that conduct; the relative usefulness of thesafer conduct; and the relative safety o f altern ative co nduct.
Coln v. City of Savannah , 966 S.W.2d 34, 39 (Tenn. 1998) clarified in Cross v. City of

Me mphis , 20 S.W.3d 642, 644 (T enn. 2000 ); McCall v. Wilder , 913 S.W.2d at 153.
The extent that harm is foreseeable plays a pivotal role in this analysis. The courts will not impose a duty on a

business t

o protect persons who come on its premis es from unforeseeable ha rm. However, they will impose a duty on a business to protect persons coming on the property from harm tha t is rea sonably foreseeable. As the Tennessee Supreme Court has noted, “the degree of foreseea bility needed

to establi sh a duty of

care decrease s in propor tion to the [ increa se in th e ] magnitude of the foreseeab le harm .” Pittman v. Upjohn Co. , 890 S.W.2d 425, 433 (Tenn. 1994). Consequently, to preva

il i n a pr emises liability action, the plaintiff must show that the injury was reas onably

foreseeable and that some action by the owner more probably than not would hav e prevented it. Dobson v. State , 23 S.W.3d 324, 331 (Tenn. Ct. App. 1999).
Premises liability cases such as this one arrange themselves around one or ganizing principle. Owners and occupiers of business premises have a duty to maintain their premises in a safe manner only in area s where customers or the public will foreseeably be present. Aluminum Co. of Am. v.-5-

Baker , 542 S.W.2d

819, 821 ( Tenn. 197 6) (a pa rking lot) ; Johnson v. Tennessean Newspaper , 192 Tenn. 287, 291, 2

41 S.W.2d 3 99, 401 (1 951) (a p ublic par k); Schrade r v. Kentu cky-Te nn. Light & Power Co. , 157 Tenn. 391, 399-402, 8 S.W.2d 495, 497-98 (1928) (the ground be tween a sidewalk and a parking lot); Winste ad v. Goodlark Reg’l Med. Ctr., Inc. , No. M1997-00209-COA-R3-CV, 2000 WL 343789, at *1, 5 (Tenn. Ct. App. April 4, 2000) (No Tenn. R. App. P. 11 application filed) (a sidewalk ); Kenning v. HCA Health Servs. of Tenn., Inc. , No. M1998-00482-COA-R3-CV, 1999 WL 1206697, at

*1, 5 (Tenn. Ct. App. Dec. 17, 1999) (No Tenn. R. App. P. 11 application filed) (a drive-through lane use d by pede strians a s an alte rnate r oute); Byrd v. State , 905 S.W.2d 195, 196-97 (Tenn. Ct. App. 1995) (shoulders of roadway used by pedestrians where there wer e no sidewalks); Great Atl. & Pac. Tea Co. v. L yle , 49 Tenn. App. 78, 8 1-85, 351 S. W.2d 391 , 394-95 (1961) (a parking lot); East

Tenn. Light

& Power Co. v. Gose , 23 Tenn. App. 280, 284, 130 S.W.2d 984, 986 (1939) (a stor e a isle); Jackson v. City of Na

shville , 17 Tenn. App. 413, 415, 68 S.W.2d 137, 139 (1932) (a street without sidewalks). Conversely, the law will not impose a duty on property owners and businesse s to use ca

re to main

tain plac es wher

e it is not reasonably foreseeable that customers or the public will be present. Dobson v. State , 23 S.W.3d at 329, 33 0-31; Bivin v. Southern Oil Serv., Inc. , 54 Tenn. App. 678, 689, 394 S.W.2d 141, 146 (1965).
The circumstances of this case are similar to Dobson v. State where a visitor to the campus of the Unive

rsity of T ennesse e at Mar tin trippe d over a m

etal landscape bor der while detouring across a lawn instead

of using a

nearby s idewalk l eading to the custo mary ent

rance t o the building where she was going. We affirmed the Claims Commission’s conclusion that the visitor was more negligent than the Uni versitybecause she had eschewed the side walk plainly provided for pedestr ians. Dobson v. State , 23 S.W.3d at 329. We concluded that Ms. Dobson’s actions were not forese eable

an d, co rrespondingly, co ncluded t hat the un

iversity w as not liab le for he r injurie s. Dobson v. State , 23 S.W.3d at 331-32.
In thi s case, Ms. Plunk walked onto and fell in a small plot of grass that was part of th e landscaping betwee

n the nurs ing home’ s circula r drivew ay and the

building. T

his small plot o f grass existed for aes thetic pu

rposes a nd was not

intended to provide

a pathwa y from or to pla ces at the nursing home whe

re patie nts, their families , or other

guests w ould be exp ected to go. Ms. Plunk impulsivel

y left the concrete sidewalk and pavement that ha d been constructed for

persons entering and leaving the nursing home and ventured into the landscaping near her mother’s window. Based on the facts of this record, there is no basis to hold NHC Healthcar e to the duty of anticipating that vi s itors to the nur sing home m ight leav e the side

walks an d paved s urface s provide d for the ir convenienceand ventu

re in to t he landscaping. Thus, because Ms. Plunk’s actions were not reasona bly forese eable, w e conclu de as a ma tter of la w that NHC

Healthc are did

not have a

duty to maintain this small grassy area in a way that would make it safe for pe destrian traffic.
A moving party is entitled to adirected verdict if the opposing party fails to present evidence establishing a

prima faci e case. Harrogate Corp. v. Systems Sales Corp. , 915 S.W.2d 812, 818 (Tenn. Ct. App. 1995). To make out a pri ma facie negl igence c laim, Ms. Plu nk was required to prove that NHC Healthcare breached a duty of care that it owed to her. This she failed to prove. Accordingly, the trial court erred by failing to grant NHC Healthcar e’s motion for

a directed verdict at the close of the plaintiffs’ proof.4 In li ght of our de cision that NHC H ealthcare was entitled t o a directed verdict, we pretermit Ms. Plunk’s arguments that

the jur y’s verdic t was inconsi stent , inadequat e, and agains t the wei ght of the evi dence. -6- IV.
We reverse the judgment and remand the case to the trial co urt with dire ctions tha t Ms. Plunk’s negligence claim be dismissed. 4 The costs of this appeal are taxed to Linda K. Plunk and her surety for which execution, if nece ssary, may issue.

____________________________ WILLIAM C. KOCH, JR., JUDGE