# FILED February 11, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) SHERRY SCHLEICHER, ) Maury County Circuit Court ) No. 6415 Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 01A01-9711-CV-00649 ) FOUNDERS S ECURITY LI FE ) INSURANCE CO. , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Maury County at Columbia. Honorable Robert L. Jones, Judge
Joe F. Gillespie, Jr. , Joelton, Tennessee Attorney fo

r Plaintiff/Appell

ant.
Mark S. LeVan , COX, LEVAN, SPRADER & PATTON, PLLC, Nashville, Tennessee Attorney for Defendant/Appellee.

OPINION FIL

ED: AFFIRMED IN P

ART, REVERSED IN PA RT AND REMANDED FARMER, J. HIGHERS, J. : (Concurs) TOMLIN, Sp. J. : (Concurs)1 Subsequent to the f iling of this lawsu

it, the Defendan

t’s name has been

changed to “Modern Americ

an Life I nsurance Company

.” For purposes o

f this opinion, we wi

ll continue to refer to the Defendant as “Founders Security .”

2 There is a factu

al dispute rega

rding the prec

ise manner in whic

h Schleicher atte

mpted to exit Dr. Skinner’s office. Schleicher testified that, when she stepped through the doorway , she was facing to the side and looking at the frame of the door. Schleicher further e xplained that she was “sidestepping” through the door. During a recorded telephone c onversation with an investigator of Founders Security, however, Schleicher stated that she was facing the hallway and backing out the door when the accident occurred.

In this premises liability action, Plaintiff Sherry Schleicher filed a complaint again

st Defendant

Founders Security Life Insurance Company (Founders Security), 1 seeking damages for injuries incurred

as a resu lt of a fall sustained by Schleicher while exiting a building owned by Founders Security. Schleicher’s complaint sought recovery under the theories of common law negligence and negligence per se. The jury returned a verdict finding that Schleicher was forty-nine percent at fault, fin

ding that Founders Security was fifty-one percent at fault, and assessing Schleicher’s damages at $20,073.92. Both parties have appeal. For the reasons set forth below, we uphold the jury’s findings regarding the relative fault of the parties. Wit

h respect to the jury’s assessment of dam

ages, however,

we reverse and

remand to the tria

l court for a new

trial.

Factual and Procedura

l History

On February 22, 19 94, Schleicher arrived at the “Professional Building” in Columbia , Tennessee for a 3 :30 appointment with Dr. Michael Skinner, her periodontist. At the time of her arrival, it was raining andthere was low visibility. Schleicher parked her vehicle and, after opening her umbrella, rushed inside the Professional Building through the front entrance. After her appointment,

Schleicher prepared to exit through this same doorway. She noticed that Dr. Skinner and an assistant

were pushing some medical equipment toward the exit and proceeded to hold the do or open for them. Sch

leicher then ste

pped through the do

orway, lost her ba

la nce, and fel l backwards onto the ground, injuring her hip. 2

Dr. Skinner drove Schleicher to Maury Regional Ho spit al. Schleicher received Demerol injections to ease her pain and was admitted to the hospital. The following morning, Schleicher

underwent hip replacement surgery. She was discharged nine days later

and transported by ambulance to her home in Primm Springs, Tennessee. For the next two months, Schleicher wasessentially confined to a hosp

ital bed, receiv

ed home health ca

re, and was requ

ired to use

a bedside commode. She was initially unable to walk without the aid of others but, after her f irst week of recuperation at home, she was able to walk unassisted.

During the first three weeks following her s urge ry, Schleicher was placed on what she described as “strong pain medication.” After this period, however, S chleicher took only Ibuprofento treat her

pain. At the time of

trial, Schleiche

r walked with

an occasional limp, requiring the assistance of a cane. She also experienced some pain, stiffness, and decreas ed mobili ty follo wing her hi p replacement surgery. Dr. Eslick Daniel, the orthopedic surgeon who treated Schleicher

following the accident, testified that Schleicher will likely have to undergo a second hip replacement

surgery at some point in the future. The costs of this procedur e are estimated at $29,150.00. Dr. Daniel further testified that, as a result of Schleicher’s hip injury, Schleicher has
a partial permanent impairment rating of fifteen percent to the body as a whole and thirty-seven percent to the right leg.

On Ja nuary 10, 1995, Schleicher filed a complaint against Founders Security, the
owner of the Professional Building, alleging common law negligence and negligence per se. In its answer, Founders Security raised comparative fault as an affirmative defense. The matter came to be heard by a jury on July 29, 1997 and July 30, 1997. At the conclusion of all the proof, the trial judge instructed the jury that, as a matter of law, the Professional Building was not in violation of either section 1101 or s ection 1102 of the Southern Standard Building Code. The jury found that Founders Security was fifty-one percent at fault and that Schleicher w

as forty-nine pe

rcent at fault. Additionally, the jury foundthat Schleicher had in

curred damage

s totaling $20, 073.9

2. Taking into account the jury’s assessment of fault, the trial judge entered an order granting to Schleich er a judgmentin the amount of $10, 237.70. Schleiche r filed a motion for additur or new trial and Founders Security filed a motion for judgment notwithstanding the verdict. The trial judge denied both motions. Both parties have appealed.

Issues

The questions pre

sented on appeal

, as we perceive

them, are as follo

ws:I. Did the trial court err in denying Schleicher’s mot ion for additur or new tri

al? II. Should the trial cou

rt have granted a

directed verdic

t in favor of Founders Security with respect to Schleicher’s claims of negligence per se based on a lleged viola

tions of the Southern Standard Building Code? III. Di d the trial court e

rr in excluding te

stimony regardin

g the su bstance of amendments to section 1117.1(e) of the Southern StandardBuilding Code made a fter the constr

ucti on of the Professional Building? IV. Did t he trial court err in excluding testimony regarding whether the Professional Building was in compliance w ith the Americans with Di

sabilities Act? V. Did the trial court err in chargingthe jury regarding “open and obvious” cond

itions?
The Jury’s Assessment of Damages

In personal injury cases, the amount of damages to be awarded is left primarily with

in the sound discretion of

the jury. See, e.g., Transpor ts, Inc. v. Perry , 414 S.W.2d 1, 5 (Tenn. 1967); Hunt er v. Burke , 958 S.W.2d 751, 757 (Tenn. App. 1997). There is no mathematical rule o r formula that should be used when computing damages. See, e.g., Brown v. N ull , 863 S.W.2d 425, 429-30 (Tenn. App. 1993) (citi ng Smith v. Bullington , 499 S.W.2d 649, 661 (Tenn. App. 1973)). Rather, the jury isguided by the rule that the injured pla

intiff is entitled to “reasonable compensation for bodily injuries, pain and suffering, disability, loss of earnings and exp enses.” B rown , 863 S.W.2d at 430. A jury’s assessment of damages, once approved by the trial judge, is entitled t o a great deal of weight onappeal. See, e.g., D. M. Rose & Co. v. Snyder , 206 S.W.2d 897, 908 (Tenn. 1947); Van Sickel v. Howar d , 882 S.W.2d 79 4, 795 (Tenn. App. 1994). In reviewing the jury’s findings, we are required to “take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth o f allthat tends to suppor

t it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict.” See Poole v. Kroger Co. , 604 S.W.2d 52, 54 (Tenn. 1980) (quoting Southern Ry. Co. v. Sloan , 407 S.W.2d 205, 209 ( Tenn. App. 1965)) . When a party complains that the amount of the jury verdict is inad eq uate, we must examine the facts and circumstances of the case and determine “whether the evidence so greatly

preponderates against the amount awarded as to show passion, prejudice or unaccountable caprice.” Van Sickel , 882 S.W.2d at 795 (citing Board of Mayor and Alde rmen v. Moore , 232 S.W.2d 410, 413 (Tenn. App. 1950);3 Thelma Schleicher is related to the Plaintiff by marriage.

Karas v. Thorne , 531 S.W.2d 315, 317 (Tenn. App. 19 75)). If there i

s any material ev

idence in the record to support the jury’s assessment of damages, the verdict must be affirmed. See Poole , 604 S.W.2d at 54-55 (citing Southern Ry. Co. , 407 S.W.2d at 209); T.R.A.P. 13(d).

In the instant case, the parties stipulated that, as a result of the accident, Schleicher had incu rred medica l expenses totaling $20,073.92. When Schleicher arrived at the hospital immediately

following the acc iden t, she was given injections of Demerol to ease her pain. Schleicher

testified that she experienced pain and stiffness following her hip replacement surgery. For the first three weeks follow in g the surgery, Schleicher was placed on what she described as “stron g pa in medication.” Later, however, Schleicher took only Ibuprofen to treat her pain. Dr. Daniel testified that Schl

eicher will proba

bly have to

undergo a

second hip repla

cement surgery i

n the future. Dr. Dan

iel further testif

ied that, after th

is procedure, Schleicher will likely experience pain similar to

the pain experienced after the first hip replacement surgery. The estimated cost of
a second hip

replacement surgery is $29,150.00. Dr. Daniel testif ied that, as a res

ult of the accide

nt, Schleicher

has a partial permanent impairment of fifteen percent to the body as a whole and

thirtyseven percent to the right leg. Schleicher testified that, p rior to the accident, she enjoyed many phys ical ac tivities including we ight training, hiking, horseback ridin g, and yard work.

Thelma Schleicher 3 testified that she and Schleicher used to go walking and bicycling together but further stated that Schleicher no longer has the stamina to engage in those activities. Finally, Schleicher testified that, if she under

went a second hip replacement surgery, she would be confined to her house and unable to work for approximately two months. At the time of trial, Schleicher had obtained a degree in nursing and was p reparing to take

an examination tha

t w ould allow her t o practice as a
nurse in the state of Tennessee. Thelma Schleicher, who is also a nurse, testified that the average wage of a nurse is $16.00 to $29.00 per hour.

The jury found th

at Schlei cher had suffe

red a total of $20,

073.92 in damages a

s a result of the accident.

This figure is equal to the amount of Schl eicher’s stipula

ted medical expe

nses. Schleicher

argues on appeal that the amount of the jury verdict wasinadeq uate. Specifically, she contends that the jury acted with “ bi as, passion, and caprice” in apparently disregarding the4 After the jury rendered its verdict, the trial judge questioned the jur ors regarding the manner in which the jury reached its decision. One juror explained that there wa s disagreement among the jurors regarding whether Schleicher’s neg ligence exceeded the negligence of Founders Security. In order to rea ch a unanimous verdict, the jurors compromised. The jury found that Schleicher’s negligence was slightly less than the negligence of Founders Security but limited Schleicher’s damages to the amount of her past medical expenses. Under the Tenne

ssee Rules of Evide

nce, we are not p

ermitted to conside

r the statements of a juror unless they relate to the question of “whether extraneous prejudicial infor mation was improperly brought to the jury’s attention, whe ther any outside influence was improperly brought to bear upon any juror, or whether the jurors agre ed in advance to be bound by a quotient or gambling verdict.” T.R.E. 606(b). See also Goss v. Hutc hins , 751 S.W.2d 821, 828 (Tenn. 1988); State v. Blackwell , 664 S.W.2d 686, 688 (T enn. 1984); Terry v. Plateau Elec. Coop. , 825 S.W.2d 418, 423 (Tenn. App. 1991). A quotient or gambling verdict is one reached by averaging the figures suggested by each member of the jury. See, e.g., Odom v. Gray , 508 S.W.2d 526, 532 (Tenn. 1974). In the instant case, there is no allegation that the jury verdict was tainted by extraneous information or outside influence. Additionally, there is no allegation that the jurors agreed to be bound by a quotient or gambling verdict. Thus, although it appears that the jury may

have improperly

failed to separa

te the issues of lia

bility and da

mages, we must nevertheless disregard this information when considering whether the trial court erre d in denying Schleicher’s mot

ion for additur or

new trial. aforementioned

testimony concerning her past and future pain and suffering, future medical expenses, perma

nent impairment, lo

ss of enjoyment of l

ife, and future l

ost wages. 4

The damages sought by Schleicher for future pai n a nd suffering, future medical expenses, and future lost wa ges are somewha

t speculative. Dr

. Daniel testified

that Schleicher w

ill “probably” be required to un dergo a second su

rgery. Because

Dr. Daniel was no

t able to state with certainty that this procedure would be necessary, the jury, in its discretion, could have concluded that Schleicher

did not carry her burd en of proof with respect to these future damages. Additionally, there was conflicting evidence regarding Schleicher’s permanent impairment and loss of enjoyment of life. Dr. Daniel testified that Schleicher is partially disabled as a result of the accident. He further stated, however, that her injuries will not prevent her from engaging in most activ ities, including horseback

riding or working as a nurse. Although Dr. Daniel testified that he placed no physi cal restrictions on Schleicher following her recovery, he noted that Schleicher should take care of her hip and should not overdo her activities. Given this testimony, the jury could have concluded that Schleicher

did not prove that sh

e is permanently im

paired or th

at she has s uffered a loss of enjoyment of life as a result of her injuries.

In assessing Schleicher’s damages at $20,073.92, the exact amount of her stipulated medical expenses, the jury implicitly foundthat Schleicher did not experience any pain and suffering5 In fact, counsel for Founders Security essentially conceded that the damages claimed by Schleicher wer

e genuine when

, during opening

statements, he co

mmented to the jury

as follows: [T]here is not a great deal of dispute about the damages. Clearly the la dy was hurt, broke her hip, had the surgery, was in the hospital, incurred the medical expenses, will have to have it again more than likely in the future. There’s not much question abou

t that. as a result of

her injuries. As discussed above, however, there is substantial evidence in the record establishing that Schleic

her expe rienced pain an

d suffering follo

wing the acciden

t and her hip replacement

sur gery. In cases involving subjective symptoms , which physicians are unable to clinically corroborate, th

e jury must

rely heavily on the

credibility

of the injured party’s testimony. See Bu chanan v. Harris , 902 S.W.2d 941, 943 (Tenn. App. 1995). Ms. Schleicher suffered a fracture d hip which require d surgery. Founde

rs Security made n

o attempt to refute

Schleic her’ s testi mony or question the cr edibility of other w

itnesses who offe

red test imony regarding Schleicher’ s past pain and suffering. 5 Rather, Founders Security contends that Schleicher i s not entitled to
recover damages for past

pain and sufferi

ng because her p

ain was adequate

ly contro lled with medication. Implicit in

this argument is an admission that Schleicher did, in fact, experie nce pain and suffering as a r

esult of the acci

dent. Taking the st

rongest legiti

mate view of

the evidence to uphold the verdict, as we must under Poole , we are unable to find any material evidence in the record to support the jury’s implicit finding that Schleicher did not experience pain and suffering. Such a finding can only be explained by concluding that, in the instant case, the jury acted with “passion, prejudice, or unaccountable caprice.”

Accordingly, we find that the tr ial c ourt erred in denying Schleicher’s motion for additur or new trial. Appellate courts do not have the power to suggest anadditur after the trial court has refused to do so. See Cortazzo v. Blac kburn , 912 S.W.2d 735, 745 (Tenn. App. 1995); State
ex. rel. Shaw v. Shofner , 573 S.W.2d 169, 174 (Tenn. App. 1978) ; Lo

ftis v. Finch , 4 91 S.W.2d 370, 374 (Tenn. App. 1972). We are permitted, however, to reverse the jury verdict and order a new trial. See Loftis , 491 S.W.2d at 374, 3 77. In the instant c ase, we revers

e the jury’s assessment of damages and rema

nd to the trial cour

t for a new trial o

n the issue of dama

ges.
Negligence Per Se6 The Professional Building was constructed in 1978. At the time of its construction, the

City of Columbia had adopted the 1976 edition and the 1977 revisions of the Southern Standard Building Code. See Columbia, Tenn., Ordinance 1085, 1086 (Apr. 11, 1977)(amending Columbia, Tenn., Building, Utility and Housing Codes §§ 4-101, 4-402 (1977)).

In her amended complain

t, Schleicher all

eged that Founder

s Security is liable

under the theory of neglige

nce per se beca

use the Profession

al Building d oes not comply with three sections of the Southern Standard Building Code. 6 These sections provide in pertinent part as follows:

Section 1101(b). Means of egress shall consist of continuous and

unobstructedpaths of travel to the exterior of a building at all time

s. Section 1102(a). Means of egress is a continuous path of travel from any point in a building or a structure to the open air outside at ground leve l and [consists] of two separate and distinct parts: (1) the exi t access, and (2) the exit. A means of egress comprises the vertical and horizontal means of travel and may include the room space, doorway, corridor, hallway, passageway, stai r s, ramp, lobby, fire escape, escalator, and o

ther paths of tra

vel. Section 1117.1(e). Exit landings shall n ot open onto a flight

of stairs. A landing of at least the width of the door shall be provided.

S. Standard Bldg . Code §§ 1101(b), 1102(a), 1117.1(e) (1976 & Supp. 1977). After Schleicher presented her case-in-chief, Founders Security moved for a directed verdict. Although the trial judge deniedthe motion for a directed verdict, the court ann ounce d to counsel that he “will not give a negligence, per se, instruction on the egr ess provisi ons of the code.” At the conclusion of all the proof, the trial judge instructed the jury that, as a matter of law, the P rof essional Building did not violate either section 1101(b) or section 1102(a) of the Southern Standard Building Code. The trial judge furthe r instructed the ju ry that it must decid

e whether the Pro

fessional Building w

as in violation of section 1117. 1( e) of the Southern Standard Building Code. On appeal, Schleicher argues that the trial court

erred in directing a verdict with respect to sections 1101(b) and 1102(a). Founders Security, howeve r, complains that,

in addition to sections 1101(b) and 1102(a), the trial judge should hav e al so directed a ver dict against Schle

icher with respe

ct to her negligen

ce per se claim based on section 1117.1(e).

When ruling on a motion for directed verdict, the trial judge is obligated to consider the evidence in the light most favorable to the pa rty oppo sing the motion, dra wing all reasona

bleinferences from the evidence in favor of the no nmoving p arty and disregarding all countervailing

evidence. See, e.g., Tschira v. Willingh am , 135 F.3d 1077, 1087 (6th Cir. 1998); Conatser v. ClarksvilleCoca-Cola Bottling Co. , 920 S.W.2d 646, 647 (Tenn. 1995). A directed verdict may be grantedif, under

the undisputed facts of

the case, reasonable minds could draw only one conclusion. Se e, e.g., Eaton v. McLai n , 891 S.W.2d 587, 590

(Tenn. 1994). If

there are any ma

terial facts in dispute or if there is

any doubt regarding the conclusion to be drawn from the evidence, the motion must be denied. See, e.g., Bland v. Allstate Ins. Co. , 944 S.W.2d 372, 374 (Tenn. App. 1996).

There is no dispute in

the instan t case regarding the physical characteristics of the front entrance to the Professional Building, the location where Schleicher’s accident occurred. The entranceconsists of two glass doors and an outside porch area. The porch area, which is immediately

out side the d oorway, is approximately seven inches lower than the floor inside the building and is at least as wide as thewidth of the doorwa y. Consequently, a

person who is

exiting the Professional Building must step down when going through the doorway.

It is well settled that compliance or noncompliance with a statute is a question of law. See, e.g., Browder v. Mor ris , 975 S.W.2d 308, 311 (Tenn. 1998)(citing Myint v. Allstate Ins. Co. , 970 S.W.2d 920, 924 (Tenn. 1998)). We think that this rule also applies to the question of whether
a building is in violation of a code provision that has been adopted by city ordinance. Where, as in the instantcase, the parties are in agreement regarding the physical characteristics of the building, it is for the tr

ial court, not t

he jury, to determine whether the structure is in compliance with the applicable

building code provisions. See Dem psey v. Cor

rect Mfg. Corp. , 755 S.W.2d 798, 806 (Tenn. App. 1988). In con struing these prov

isions, we must atte

mpt to ascertain

and give effec

t to the intent of the drafters of the code, lookingprimarily to the natural and ordinary meaning of the words used. See, e.g., Browder , 975 S.W.2d at 311. Because the appl ication of code pr

ovisions is
a question of law, our review the trial court’s rulingwith respect to sections 1101(b), 1102(a), and 1117.1(e) of

the Southern Standa

rd Building Code is de novo with no presumption o f correctness. See id.

The Southern Standard Building Code requires that buildings have “ means of egress.” Section 1101(b) defines “means of egress” as “continuous an d unobstru cted paths of travel to theexterior

of a building.” S. Standard Bldg. Code § 1101(b) (1 9 76 & Supp. 1977). Section 1102(a) provides examples of

paths of travel that may be classified as a “means of egress.” See S. Standard Bldg. Code § 1102(a) (1976 & Supp. 1977). Harold Switzer, an architect who testified as an expert witness for Schleicher, stated that, because there was a drop-off immediately outside the exit doors, the path of travel to the exterior of the Professional Building was not “continuous and unobstructed.” We find, howeve r, t hat this conclusion is inconsistent with the plain language of section 1101(b). Section 1101(b) requires only that there be an unobstructed path to the exterior of the building. In the instant case, the seven inch drop-off that Switzer refers to as an obstruction is on the outside of the doorway. Any obstruction that is outside of the doorway cannot be within the path to the exterior of the building. Althou

gh Schleic

her has alleg ed that there was an obstruction outside the Professional Building, she has not alleged that the path to the exterior of the Professional Building
was obstructed. Thus, under the undisputed facts of this case, we find no violation of sections 1101(b) or 1102(a) of the Southern Standard Building Code.

Section 1117.1(e) of the

Southern Standard

Buil ding Cod e provides that “[ e]xit landi n gs shall not open onto a flight of stairs. . . .” Switzer testified that, in his opinion, the Professional Buil ding did not comply with this pr

ovision because th

ere was a step imm

ediately outside the doorway to the building. Switzer subsequently admitted, however, that this drop-off or single step was not the same thing as a flight of stairs. James Edwards, an architect who testified
as an expert witness for Foun d ers Security, confirmed that the exit doors of the Professional Building didnot open onto a flight of stairs. Section 1117.1(e) speci fically refers to a “fli

ght of stairs.” Thi

s provision does not state that a landing may not open directly onto a drop-off or single step. Thus, because it is undisputed that t

he exit landing of t

he Professional Bu

ilding did not open onto a flight of stairs, we also find no violation of section 1117.1(e) of the Southern Standard Building Code.

In 1979, section 11 17.1(e) was ame nded and now rea

ds as follows:

Exit doorways shall not

open immed iately upon a flight of stairs. A landing of at leas t the width of door shall be provided, which is the same eleva

tion as the finished

floor from which i

t i s exiting
.The Building Code Revision Committee indicated that the reason for the ame ndment to this provision was to clarify the intent of the code. Founders Security filed a motion in limine seeking to exclude any evidence of amendments made to the Southern Standard Building Code after

1978, the year in which the Professional Building was constructed. The trial judge granted the motion. During cross examination of James Edwards, an architect who testified as an exp ert witness for Founders Security, counsel for Schleicher attempted to question the witness regarding the legislative history of section 1117.1( e ). Upon the objection of counsel for Founders Security, the trial judge instructed Schleicher’s at

torney that, altho

ugh he could ask

Edwards if the code had

been amended, he could not inquire

regarding the substance of the ame ndments.

On appeal, Schleicher contends that the trial judge should have ruled that evidence regarding the substance of the 1979 amendment to section 1117.1(e) was admissible to impeach the testimony of Edwards. We find no evidence in the record, however, indica ting that counsel for Schleicher

ever requested

that thi s evidence be ad mitted for the purp

ose of impeachme

nt. Additionally, although Schleicher’s motion for additur or new trial complains that her own expert witness, Harold Switzer, should have been allowed to testify that his opinion was based in part on the substance of the 1979 version of section 1117.1(e), it is silent regarding the use of this evidence for the purpose of impeachment. Under the Tennessee Rules of Appellate Procedure, a party seeking review of the trial court’s admission or exclusion of evidence in a jury trial must bring thealleged
error to the attention of the court in a motion for new trial. See T.R.A.P. 3(e). The motion for new trial must specify with

reaso nable certainty the grounds relied upon and must identify the point during the proceedings when the error allegedly occurred. See State v. Gauldin , 737 S.W.2d 795, 798 (Tenn. Crim. App. 1 987); State v. King , 622 S.W.2d 77, 79 (Tenn. Crim. App. 1981); State
v. McKinney , 603 S.W.2d 755 , 760 (Ten n. Crim. App. 1980). If the alleged e

rror is not proper

ly raisedin a motion for new trial, the issue is waived. See State v. Caughron , 855 S.W.2d 526, 538 (Tenn. 1993); T.R.A.P. 3(e). Thus, becau se Schl eicher’s argument with respect to the use of the 1979 version of section 1117.1(e) for the purpose of impeachment was not raised at the trial court level, we conclude that it has been waived.

In light of our

finding that the Professional Building was not in violation of sections 1101(b), 1102(a), or 1117.1(e) of the Southern Standard Building Code, we hold that the trial courtshould

have directed a verdict in favor of Founders Security

with respect to Schleicher’s negligence per se claims based on these provisions. As noted above, the trial j udge did not direc t a verdict with respect to Schlei cher’s claim

based on section 1117.1(e) but instead allowed the jury to consider wh ether the Professional Buildi

ng violated this pro

vision. Schleicher

’s complaint alleg

ed both
common law negligence and negligence per se. The jury returned a gen eral verdict

finding that Founders Securi ty was fifty-one percent at fault for Schleicher’s injuries but did not specify the theory of liability upon which the verdict was based. When a general verdict is rendered in an action basedon multiple theories of rec ov ery, we will not disturb the verdict if it can be upheld under at least one of these theories. See Adkins v. Ford Motor Co. , 446 F.2d 1105, 1108 (6th Cir. 1971) ; Tutton v. Patterson , 714 S.W.2d 268, 271 (Tenn. 1986); Tenn. Code Ann. § 20-9-502 (1994). In the instant case, there was ample evidence to support a finding of negligence on the part of Founders Security under the theory of common law negligence. Thus, we conclude that the failure of the trial court to direct a verdict with respect to section 1117.1(e) of the Southern Standard Building Code was harmless error.

Americans with Disabilities Act

Prior to trial, Founders Security filed a motion in limine seeking to exclude any testimony regarding wheth er the Profession

al Building was in

compliance with the Americans with Disabilities Act ( ADA) on t he date of Schleicher’s accident. The trial judge granted the motion, noting that Schleicher is not a member of the class protected by the ADA.

It is well settled that, in order for a plaintiff to recover under the theory of negligence per se based on the violation of a statute, the pla

intiff must be a memb

er of the class

of persons that the statute was intended to protect. See Sumner v. United States , 794 F. Supp. 1358, 1367 (M.D. Tenn. 1992); Cook v. Spinnaker’s of Rivergate, Inc. , 878 S.W.2d 934, 937 (Tenn. 1994); Smith v. Owen , 841 S.W.2d 828, 831 ( Tenn. App. 1992).

In the instant cas

e, Schleicher did

not assert a negligence per se claim based on any alleged violation of the ADA. Rather, Schleicher’s position is that evidence regarding the failure of the Professional Building to comply with the ADA should7 Constructive notice, as opposed to actual notice, is notice that is imputed to a party by

operation of law. See Blevins v. Johnso n County , 746 S.W.2d 678, 682-83 (Tenn. 1988).
8 Schleicher notes that counsel for Founders Security made the following statement to the trial judge: There has been n

o evidence of an

y other acc

ident at this area

, nothing to put my client on notice, no building code violations. Nothing whatsoever to establish that there is a hazard here. These comments, however, were made during argument held outside of the prese nce of the jury. Thus, they may not be relied upon by Schleicher in support of her contention that “constructive notice” was an issue in the instant case. have been admissible to show that Founders Security had “con struc tive notice” 7 of the dangerous condition of the building. We find, however, that constructive notice was not an issue in the case at bar. Founders Sec

urity does not deny

that it was aware of

the condition of the Professional Building on the date of Schlei cher’s accide

nt. 8 It merely contends that the conditionof the building
was not unreasonably

dangerous. Thus, because “const ructive notice”

was never an issu

e at trial,
we think that any evidence regarding the compliance or

noncompliance of the Professional Building withthe ADA would have been irrelevant. Accordingly, we hold that the trial court properly ruled that evidence regarding this matter was inadmissable.

Jury Charge Regarding

“Open and Obvious” Co nditions

At the conclusion of the proof, the trial judge instructed the jury in pertinent part as follows:

The plaintiff has the duty to use reasonable care for the

plaintiff’s own safety and ma ke reasonable

and responsible u

se of the plaintiff’s sense

s. If the plaintiff f

ails to see or be aware of a defect or an unreasonably

dangerous condition that is obvious or should be discovered

through the use of re asonab le care, the pla intiff is negligent.

Schleicher

contends on appea

l that the charge

given tothe jury with respe ct to “open and obvious

” conditions must have confuse d the jurors, caus

ing them to attribute

to her a higher de

gree of fault. Founders Security, howeve r, maintains that th

e jury instruction w

as consiste

nt withthe law in Tennessee rega

rding “open and ob

vious” conditions.Under common la

w negli gence principles, a plaintiff may not recover for injuries sustained as a result of dan gerous condit

ions that were “open and obvious.” See McCormick v. Waters , 594 S.W.2d 385, 387 (Tenn. 1980); Kendall Oil Co. v. Payne , 293 S.W.2d 40, 42 (Tenn. App. 1955 ). In Coln v. City of Savannah , 966 S.W.2d 34 (Tenn. 1998), our supreme c our t considered

whether and to what

extent this traditional rule was affected by McIntyre v. Balentin e , 833 S.W.2d 52 (Tenn. 1992), whe rein the doctrine of comparative f

ault was express

ly adopted in Tennessee. See Coln , 966 S.W.2d at 36. The court concluded that the traditional rule regarding “open and obvious” conditions was not subsumed by the doctrine of comparative fault, holding as follows:

That

a danger to the plaintiff was “open or obvious” does not, ipso facto , relie ve a de fendant of a duty of care. Instead, the duty issue must be analyzed with regard to foreseeability and gravity of harm, and the feasibility and availability of alternative con

duct that would have prevented the harm. . . . if the foreseeability and gravity of harm p o sed from a defendant’s conduct, even if “open and obvious,” outweighedthe burden o n the defendant to engage in alternative conduct to avoid the harm, there is a duty to act with reasonable care. The circumstances o

f the case are t

h en analyzed under comparative fault.

Id . at 43.

The essence of the rule announced in Coln is that the traditional “open and obvious” rule no longer se

rves as a complete bar to the plaintiff’s recovery. It recognizes that, even if the danger is “open and obviou

s,” the defenda

nt may still

owe a duty of car

e to the plaintiff unde

r certain circumstances.

Once it is established that the defend ant owed aduty to the plaintiff, it is then appropriate

to consider whether the plaintiff was also negligent. In the instant case, the trial judge instructed the jury that, if Sc hleicher did

not use reasonable care to discover a dangerous condition existing at the Professional Building, she was negligent. The negligenc e of a plaintiff is an appropriat e considera tion under the doctrine of comparative fault. Thus, we do not think that the jury instruction given in

the instant case is

in any way inconsiste

nt with the court’s

holding in Coln
.
ConclusionBecaus e we can find no ev idence in the rec

ord to support the ju

ry’s assessment o

f damages, we conclude that the trial judge er red in failing to grant Schleicher’s motion for additur or new trial. In all other respects, the judgment of the trial court is affirmed. We therefore affirm in part, reverse in part, and remand the cause for a new trial solely on the issue of

damages. Costs
on appeal are asse

ssed one-half to

Schleicher and one-half to Founders Security, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ HIGHERS, J. (Concu

rs)

______________________________ TOMLIN, Sp. J. (Conc

urs)