### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON June 6, 2002

Session JULIA WILKES, ET AL 

### . v. FRED’S, INC. d/b/a FRED’S SUPER STORE, ET AL 

### . Direct Appeal from the Circuit Court for Shelby County No. 77842 T.D. Robert A. Lanier, Judge

No. W2001-02393-COA-R3-CV - Filed August 20, 2002

Plaintiff slipped and fell on liquid laundry dete rgent which had spilled in the customer service area in Defendant’s sto

re. The jury returne d a verdi ct in fav or of the Defend ant. We af

firm.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d; and Remanded

D AV ID R. F ARMER , J., delivered the opinion of the court, in which A LAN E. H IGHERS , and H OLLY K. L ILLARD , J.J., joined.

Ron W. McAf

ee, Memphis, Tenn essee, f or the ap pellants, Julia Wilkes a

nd John Wilkes

. Stephen P. Miller and Evan Nahmias, Memphis, Tennessee, for the appellee , Fred ’s, Inc. d/b/a Fred’s Super Store.

OPINION

In August o f 1995, Ms. Wilkes was shopping in Fred’ s Super Stor

e (“Fr ed’s”) on Getwe

ll Road in Memphis when she slippedon liquid laundry deterg ent which had spilled onto the floor near the customer service area of the store. Ms. Wilkes had been standing in line waiting to check out of the store when she stepped out of line to check the price of an item. When she stepped out of line she slipped a

nd fell on the spilled detergent. As a result of the fall, Ms. Wilkes suffered injury to her knee and required immediate medical attention. Mr. and Ms. Wilkes filed a complaint against Fred’s in April of 1996. Ms. Wilkes alleged that her injuries were caused by Fre d’s negligence and pra yed for damages in the amount of $250,000, plus costs of future medical expense. Mr. Wilkes prayed for dama ges of $ 50,000 fo

r medica l expenses , loss of se

rvices a nd loss of c onsortium.

The cause was he ard bef

ore a jury in March of

2001. At trial, Ms. Wilkes introduced the deposition of Mr. Lee Ky les, the manager on duty

of Fred’s at the time of the accident, which was taken in May of 1999. Ms. Wilkes in troduce d the depo sition for the purpo se of authenticating the-2-

policies and procedures manual of Fred’s r egarding the clean- up of spills and the accident report regarding Ms. Wilkes’ fall. The manual and accident report were a dmitted into evidence. The trial court then per mitted Fr ed’s to r ead othe r portion s of Mr. Ky

les’ depositio n in which Mr. Ky les said that Ms. Wilkes ha

d told him “[b]asically that she had slipped and that the car rier [sic] had warned her that there was a liquid on the floor .” Mr. Ky

les testif ied at de position tha

t, “[s]he (M s. Wilkes) repeat edly told me once we got her in the chair that the cashier had warned her about it but she had just forgotten.” Ms. Wilkes objected to the admission of additional portions of the deposition on the grounds that it was outside of the scope of the purposes for which he introduced it. The trial court admitted the deposition pursuant to rule 32.01 of the Tennessee Rules of Civil Procedure. Mr. Kyles
wa s not present at the trial. Upon redirect examination, Ms. Wilkes denied mak ing such a statement to Mr. Kyles.

At trial, Fred’s introduced the telephonic deposition testimony of Ms . La To nya Jackson, the cashier who witne ssed Ms. Wilk es’ fall . Ms. W ilkes objected to admission of Ms. Jackson’s deposition on the grounds that it had not been established that Ms. Jackson was out of state or

more than 100 miles from the place of trial as required by r ule 32.01 (3)(B) of the Te

nnessee Rules of Civ

il Procedure. The trial court agreed that repre sentation by Fre d’s counsel was insufficient to prove that Ms. Jackso n wa s out of state, but held that since Ms. Jackson had testified at the time of the deposition in September of 2000 that she had been a resident of Calif ornia since 1998, the court would “indulge in the presumption that she is where she re sides.” The tria l court a ccordin gly admitted the deposition into evidence.

Ms. Jackson testified by

deposition that the laundry deter gent on which Ms. Wilkes slipped
was spilled by

the woman

who was checking

out ahea d of Ms. Wilke s, and tha

t it had spilled in

front of Ms. Wilkes. Ms. Jackson further testified that she told Ms. Wilkes to be careful and to watch out for the dete rgent. Ms. Jackson

stated tha

t she “called the stock guy to come clean it up,” and that she thought it would be cleaned up by the time she had finished ringing up Ms. Wilkes’ purchas es. According to Ms. Jacks on, when s he told Ms. Wilkes to be careful, Ms. Wilkes responded that she
was aware of the deterge

nt because she had seen

it being spilled. Ms. Jackson further stated tha t Ms. Wilkes stepped over the detergent to beg in checking out, and began putting her items on the counter while her shopping cart was behind her. Ms. Wilkes then moved the cart backwards in order to step back to check the price on an item, and then slipped and fellon the detergent. She stated that she calledthe mana

ger fo r assista nce af ter Ms. Wilkes had fallen, and that she had no further involvement with Ms. Wilkes.
Upon cross-examination by coun s el for Ms. Wilkes, Ms. Jackson testified that fewer than five minutes had elapsed between the time the deterg ent had spi ll ed a nd M s. W il kes ’ fa ll . In response to questio ns by

counsel, Ms. Jackson stated that Ms. Wilk es had ste pped ove r the pudd

le to begin checking out, and started to check out with her shopping cart behind her , over the spilled deterg ent. Ms. Jackson testified that when Ms. Wilkes moved her sh oppi ng cart t o step back t hrough the aisle, she did not turn around but stepped backwards. Ms. Jackson stated that she had no conversation withMs. Wilkes after the fall, and that s he did not h ear any convers ation bet

ween Ms. Wilkes and the manager on duty , Mr. Kyles. Upon re direct by counse l for Fred’s, Ms. J a ckson-3-

further stated that she planned to remain in California and that she had a job in California, and tha t she would visit Memphis in either November or December.

Ms. Wilkes tes tifi ed that she was not directly behind the customer who had spilled the deterg ent, and that she did not see the detergent spill. She stated that she did not have a conversation withMs. J ackso n conc ernin g the sp ill, and th at the re was n o caut ion s ign or any thing to alert he r to the spill. Upon re-cross examination, counsel for Fred’s asked, “[a]nd I think earlier y ou said you took one step back.” Ms. Wilkes replied, “Uh-huh.” Counse l a ske d, “ [a] nd t

ha t’swh en y ou f el l?” Ms. Wilkes answered, “[r]ight.”

The jury returne d a verdict in favor of Fred’s and Ms. Wilkes moved for a new tr ial. In her motion, Ms. Wilkes submitted that it was error for the trial court to admit the deposition testimony of Mr. Kyles and Ms. Jackson into evidence , and that the verdict was not supported by the evidence. Ms. Wilkes’ motion for a new trial was denied and this appeal ensued.

Issues Presented The issues as presented by Ms. Wilkes on appeal are:
(1) Whether it

was err or to admit

the substantive testimony from the discovery deposition of Lee Ky

les, in that the testimony read by D efendant’s counsel
was outside the scope o f Rule 32.01(4), Tennessee Rules of Civil Procedure and Rule 106, Tennessee Rules of Evidence.
(2) Whether it

was err or to admit

th e d ep os it io n t es ti mo ny o f La To nya Jackson in that Def

endant f ailed to meet i ts burden of estab lishing u navaila bility pursuant to Rule 32.01 (4), Te nnessee Rules of Civil Procedure, and Rule 804, Tennessee Rules of Evidence.
(3) Whether

it was error for the trial

court to shift the burden to Plaintiff to show that the deposition testimony of LaTonya Jackson should not be admitted.
(4) Whether

the weight of the evidence fails to support the jury’s finding that the Defend ant was n ot negli gent.

Standard of Review

This ca se wa s t ri ed be fo re a j ur y. Findings of fact by a jury shall be s et aside

only if there is
no materia

l evidenc e to suppor

t the ver dict. Ten n. R. App. P. 13(d). U

pon revie w, this Court will not re-weigh the evidence, but will take the strongest view possible of the evidence in favor of th e prevailing party, and disca rd evidence to the contrary

. Haga v. B lanc & West Lumber Co., 666 S.W.2d 61, 63 (Tenn . 1984); Smith County v. Ea therly , 820 S.W.2d 366, 369 (Tenn Ct. App. 1991). We will allow all reasonable inferences to uphold the jury ’s verdict, sett ing it as ide only if there is-4-

no material evidence

to supportit. Id. This stand ard of r eview sa fegua rds the c onstitution al righ t to
a trial by jury

. Id. Our review of the trial cou rt’s conclusions o f law in a jury trial, how ever, is de
novo upon the record, with no presumption of correctness. Tenn. R. App. P. 13(d). Campbell v. Florida Steel Corp ., 919 S.W.2d 26, 28 (Tenn. 1996). The admission or exclusion of evidence at

trial is within the sound disc

retion of the trial court an d will not be

overtur ned abse nt a finding of abuse of such discretion. Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992).

Admission into Evidence of Deposition of Mr. Kyles

On appeal, Ms. Wilkes contends that the deposition of Mr. Ky les is hea rsay and that t he “rule of complete ness” em bodied by rule 106 o f the Ten

nessee R ules of Ev

idence d oes not a pply here because the use of the same depositio n by

Ms. Wilkes was for the limited purpose of authenticating documents. We disagree.

We begin our

analy sis of Ms. Wil

kes’ argume

nt by noting th at the tri al court ’s decis ion to admit the deposition was basedon rule 32 of the Tennessee Rules of Civil Procedure. Rule 32.01 provides :
Use of Depositi ons [.] At the trial . . . any par t or all of a deposition, so far as admissible

under the ru les of evidence applied as though the witness wer e then present and testifying , may be

used against any

party who wa s present or represented at the taking of the deposition or who had reasonable notice thereof, in a ccordance with any of the fo llowing p

rovisions :

. . . . ( 4) If only

part of a deposition is offered in evidence by a party, a n adv ers e party may require the offe ring pa rty to in trod uce any

other pa rt which o

ught in fairne ss to be considered with the part introduced, and any party may introduce any other parts

.
Tenn. R. Civ. P. 32.01 (e mphasis added). Rule 32.01 has been rega rded as primarily

a rule of evidence. See Robert Banks, Jr., and June E. Entman, T E NNESSE E C IVIL P ROCEDURE § 8-7(b) (1999). It ap

plies to the

use of de

position te stimony

for cro ss-examina

tio n and impeach

ment, provides a hearsay

exception, and is a

rule of completeness. Id. Accord ingly , our ana

lys is of this issue must enco mpass both rule 106 of the Tennessee Rules of Evidence and 32.01 of the Tennessee Rules of Civil Procedure, and must effectuate the overa rching purpose of

the rules. In g eneral , deposition testimony is admissible to the same extent that the testimony

would be admissible if the deponent was in court to testify. Id. The depo sition is ad missible, however , only

if the pa rty agains t whom it is offe

red was present

or repr esented at the tak ing of th e deposit ion, or wh o had rea sonable notice thereof. Tenn. R. Civ. P. 32. 01. Thus a depositio n is not admissi ble for u se aga

inst a par ty who was not afforded notice of the deposition. See id.1 W hen the deposi tion i s used f or impeachment

purposes, however, the procedu re sho uld b e in co nform ance with the appli cable Rules of Evid ence . R OBERT B ANKS , J R ., AND J UNE E. E NTMAN , T ENNESSEE C IVIL P ROCEDURE § 8-7( b) (1999).
-5- In th is case, counsel for Ms. Wilkes was present at the deposition of Mr. Ky les, had a n opportuni ty to cross- examine him

at that time, a nd did in fact do so. It was Ms. Wilkes who introducedthe depos ition into evidence . Althoug h Ms. Wilkes mayhave introduced the deposition for the limited purpose of authenticating the accident report regarding he

r fall and establishing that it was Mr. K

yle s w ho had pre pared the report, once the deposition was introduced, F red’s was entitled to require Ms. Wilkes “to introduce any other part whic h ought in fairness to be considered withthe part introduced , and . . . int roduce a ny o ther par

ts.” Tenn . R. Civ. P. 32 .01(4)( emphasis added). See Sherrod

v. Mooneyhan , No. 03A01-9810-CV-00351, 1999 Tenn. App. Le xis 478 at *16 (Tenn. Ct. App. July 14, 1999), perm. app. denied (Tenn. Jan. 3, 2000). Admissible deposition testimonymay

be used a s if the de

ponent wa s presen

t a nd testif

ying in cour

t. Dargi v. T

erminix Int’l. , 23 S.W.3d 342, 345 (Tenn. Ct. App. 2000).
Rule 32.01 provides that once a party has introduced a deposition, the opposing par ty may seek to have other portions presented at the sam e ti me when fairness requires the portions to be considered

contempo raneously. R OBER T B ANKS , J R

. AND J UNE E. E NTMAN , T ENNESSEE C IVIL P ROCEDURE § 8-7(b) (1999). In this sense, the rule regards the

timing of the introduction of other portions of the de

position a nd refle cts rule 106 of the Tennessee Rules of Evidence. Ad di ti on al ly, howeve r, if

the trial court determines that fairness does not demand that the var ious portions be
co nsidered a t the same time, admissible portions of the deposition may be introduced during the other pa rty ’s case -in-chie

f or on re buttal. 1 Id.

In gen eral, a party

may raise the

same objections to the admissibility of the evidenc e containedin the deposition that could be raised if the witness were testify ing at trial. Id . The crux of Ms. Wilkes’ argument on appeal is: “[a]llowing the Defendant to offer the hearsay

statements of its manager was manifestly unfair to the Plaintiff. Mr. Kyle s was not present and subject to

cross examination and the jury

was, the refore , deprive d of its opp ortunity to assess the credibility of the witness.” We find thisargume nt unconvincing. As noted a bove, Ms. Wilkes introduced Mr. Kyles deposition into evide

nce. Onc e a porti on of a de position is a

dmitted int

o evidenc e, rule 32.01(4) provides that other portions may be introduc ed by any party. F

urther, Ms. Wilkes had the opportuni ty to cross-examine Mr. Kyle s when the deposition was taken, and could have subpoenaed him to testify at trial in

order f or the jur y to assess hi s credib ility . The stat ements to which M s. Wilkes objects are those concerning he r own statements to Mr. Kyles tha t she had been warned

about the laundry deter

gent which ha d been sp illed on the

floor. Mr . Kyles reite

ration of such stat ements, if made at trial, would be admissible as an admission by a party -opponent under

rule 803(1.2) of the Tennessee Rules of

Evidence. In light

of the foregoing, the trial cour t did not abuse its discretion in admitting the deposition of Mr. Kyles into evidenc e.2 In Te nnesse e, form er testimo ny is adm issible o nly when the pa rty agains t whom it is offered , and n ot me rely

a predecessor in i nterest , had a n op por tunity and motiv e to ex amine the de claran t unde r oath. N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VI DENCE § 8.34[2 ][a]. This is not disputed in this case, and the record establishes that Ms. W ilkes’ attorney cross- examined M s. Jackson during the depositi on.
-6- Admission into Evidence of Deposition of Ms. LaTonya Jackson

Ms. Wilkes submits that the trial court erred in admitting the telephonic deposition of Ms. Jackson because

Fred’sdid not dem

onstrate that Ms. Jac

kson was u

navaila ble pursu ant t o r ule 32.01(4) of the Tennessee Rules of Civil Procedure and rul e 804(a)(6) of the Tennessee Rules of Evidence. Ms. Wilkes f

urther c ontends th at the court erred shifting the burde n to her to

show Ms. Jackson was available once Fred’s ha d demonstrated that at the time the depos ition was t aken Ms. Jackson wa s a resid

ent of Cal ifornia. As an initi al matter , we note that the a pplicabl e rule of

civil pr oc ed ur e i s r ul e 3 2. 01 (3 )( B) , a nd wi ll ad dr es s t hi s i ss ue ac co rd in gl y.
Rule 32.01(3) (B) of t

he Tenne ssee Rule s of

Civil Procedure and rule 804(a)(6) of the Tennessee Rules of

Evidenc e provide

that a de posed witn

ess who is more than 100 miles from the court house at the time of trial qualifies as an unavailable declar ant. N EIL P. C OHEN E T A L ., T ENNESSEE L AW OF E VIDENCE § 8.32[8] (4 th ed. 2000) . The dep osition ac cording ly isadmissible as former testimony unde r rule 804(b)(1). Id. The Tennessee Rule is substantially patterned after rule804(b)(1) of

the Federal Rules of

Evidence. 2 D AVID F. B INDER , H EARSAY H ANDBOOK § 33:2 (4 th ed. 2001). The burden of establishing unavailability is on the proponent of the evidence. Id. § 33:3; State of Tennessee v. McCoy , No. 01-C-01-9103-CR-00090, 199 1 Te nn. Cri m. App . LEX IS 929 at *7 (Tenn. Crim. App. November 21, 1991) ( no pe rm. app. filed ). However, trial courts have consider able discreti on in dete

rmining whether unavaila bility has been demonstrated. D AVID F. B INDER , H EARSAY H ANDBOOK § 33:2 (4 th ed. 2001).

The parties d

o not disput

e that whe

n the depo sition wastaken in Sept ember of

2000, six months prior

to trial, Ms. Jackson had been a resident of California for two y ears. In the abse

nce of any offer of proof or sugg estion to the contrary , we do not believe that it was an abuse of discretion for the trial judge to determine that Ms. Jackson re mained a residen t of Califo rnia at th e time of trial, just six months late

r, or to pr esume tha

t she in fa ct was wh

ere she resided . The re cord supp orts a finding that Ms. Jac

kson was u

navaila ble at the time of tr ial. We ac cording ly a

ffirm.
The Jury Verdict

The final issu e as pre sented by Ms. Wilkes on

appeal i s “[w]hether the weight of theevidence fails to support the jury’s finding that the Defendant was not negligent.” Our standard of r eview of
a jury verdict is whethe

r there is any

material evidence to support the verdict. Tenn. R. App . P

. 13(d). Thus this Court will not re-weigh the evidence to determine w here theprepond

erance lies. Haga v. Blanc & West Lumber Co. , 666 S.W.2d 61, 63 (Tenn. 1984). If there is any material evidence to supportthe jury’s finding regarding f ault, we must affirm. Id. ; Tenn. R. App. P. 13(d).-7-

In an action for negligenc e, the plaintiff must prove five elements: (1) a duty of care owed to the plaintiff by the

defendant; (2) conduct by the defendant constituting breach of that duty ; (3) injury or loss to th

e plaintif f; (4) tha t the def endant’ s conduc t was the c ause in fact of the plaintiff’s in ju ry; (5) that the defendant’s conduct was the proximate or leg al cause of the injury. Waste Mgmt., Inc. of Tennessee v. South Cent. Bell Tel. Co. , 15 S.W.3d 425, 430 (Tenn. Ct. App. 1997).

The duty of car

e is a legal obligation to act as a re asonably prude ntperson to

protect agains t harm to others in light of the apparent risk of harm. McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995). Once it has been determined that a defenda nt owed the plaintiff a duty of re asonable care, the issue becomes whether the defendant has exercised reasonable c are under the circumstances. Id. In other words, the question becomes whether the defe ndant acted as a reasonably

prudent person would act under the circumstances. See id. If the defendant has not exercised reasonable ca re, then he has breached his duty

to the plaintiff and is liable for his negligence. See id. at 153-54.
Negligence

is not presumed, however, merely from the fact that an accident has occ urred. Armes v. Hule

tt , 843 S.W.2d 427, 432 (Tenn. Ct. App. 1992). The plaintiff carries the burden of proving that the accident was proximately caused by the

defendant’s negligenc e. Sp ahr v. F . W. Woolworth Co. , No. 01-A-01 -9303-CV -00107, 1993 Tenn. App. LEXI S 573 at *7-8 (Tenn. Ct. App. Sept. 1, 1993) ( no perm. app. filed ). It is gene rally a quest ion of fact for the jury

to determine whether the defendant has exercised reasonable c are. See Bu r gess v. Tie Co. 1 , 44 S.W.3d 922, 923-924 (Tenn. Ct. App. 2000). In this case, the depositions of Mr. Kyles and Ms. Jackson provide material evidence to support the jury ’s finding that Fred’s was notneglig ent. We ac cording ly a ffirm.

Conclusion

The deposition of Mr. Kyles was admissible under rule 32.01(4) of the Tennessee Rules of Civil Procedu

re. The depositio n of Ms. Jackson was a dmissible a s former

testimony

under rule 804(a)(6) of the Tennessee Rules of Evidence and under rule 32.01(3)(B ) of the Tennessee Rules of Civil Procedure. Thejury verdict is supported by material evidence. We therefore affirm judgment for Fred’s. Costs of thi s appeal are taxe d to the ap

pellants, Julia Wilkes a

nd John Wilkes , and their
su re ty, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

___________________________________

DAVID R. FARMER, JUDGE