# FILED
April 22, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
GEORGIA CROSS and ) NEWMAN CROSS , ) ) Plaintiffs/Appellees, ) Shelby Circuit No. 72984 T.D. ) VS. ) Appeal No . 02A01-9807-CV- 00199 ) CITY OF MEMPHIS, ) ) Defendant/Appellant. )
APPEAL FROM

THE CIRCUI T COURT OF SH ELBY COUN TY AT MEMPHIS, TENNESSEE THE HONORABLE GEORGE H. BR OWN, JR., JUDGE

JONATHAN E. SCHA

RFF BRETT A. HU GHES HARRIS, SHELTON, DUNLAP & COBB, L.L.PC. Memphis, Tennessee Attorneys for Appellant

CANNON F. A

LLEN MONTE B. SERNEL ARMSTRONG ALLEN PREWITT GENTRY JOHNSTON & HOLMES, PLLC Memphis, Tennessee Attorneys for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J. Defendant City of

Memphis (“City” or “Appellant”) appeals the judgment of the trial2

court awarding Plaintiff Georg ia Cross (“Mrs. C ross” or “Appellee”) the sum of $130 ,000 forloss of enjoyment of life, permanent phy sical disability and pa in and suffering arising from a slip and fall at a Memphis public library, and awarding Newman Cross (“Mr. Cross”
or “Appellee”) $118,300 for his past and future loss of consor tium and services of his w ife, Mrs. Cross ($39,500 past loss, $78,000 future loss) .

I. Factual and Procedur al History

Mrs. Cross visited the M emphis City Library known as the Po plar/ White Station Public Library, with her four children, ages ten, seven, five a nd one, on November 28, 1994. Mrs. Cross had been v isiting this libr

ary since she was a child and had been going to this library for the children for a four-year period preceding the acci dent.

The walk ramp at the library was built in 1981 and w as not chang ed since that time other than the addition of a hand rail. The w al k ramp ran i n a downward slope from the front entrance of the lib rary to the base of t he wa lk ramp. The ramp had curb cuts that extended on both sides at the foot of the wal k ramp and each curb cut wa s painted yellow. The City of Memphis stipula ted that the yellow painted curb cut was not in complianc e with the City’s construc

tion code.

Mrs. Cross parked her vehi cle along the yellow painted curb cut. As she exited her car, along with her four children, Mrs. Cross cut across the grass but noticed the handrail had been placed on the west side of the ramp. She thought this w as to keep people from cutting across the grass, so she proc eeded dir ectly to the walk r amp. Mrs. Cross was holding her y ounges t child on her right hi p as she approached the walk ramp. As she stepped u p on the yellow curb cut with her right foot, her foot slid and her an kl e immediately gave and broke. Mrs. Cross broke her ankle in three pl aces. She was bedridden for months after the accident and now has traumatic arth ritis with a gr eat deal of pain.3

On September 27, 1995, the Crosses fil ed a negligence action agai nst the City under the Tennessee Governmental Tort Liabili ty Act (the “GTLA”), Tenn.Code Ann. §29- 20-101. Mrs. Cross soug ht damages for her slip and fall and Mr.Cross sought damages for loss of co nsortium and future loss of consortiu m.

In July of 1997, three and one half y ears after the accident, but before the trial in this matter, Mr. Cross was diagnosed with Amyotrophic Lateral Sclerosis (ALS), a fatal illness commonly known asLou Gehrig’s Disease. The disease causes the muscles to deteriorate throughout the body of the affected i ndivid ual, and genera lly al lows fo r a life expectancy of two to five years without the aid of a ventilator and f eeding tube. Alt hough it is not possible to predic t the length or time period tha t the disease will progress in Mr. Cross, at somepoint in time he will be bed-ridden and eventuall y placed on a respirator to assist breathing. At some point he will need 24 hour assistance to help him with his daily routine.

The case wastried without a jury on May 12 and May 13, 1998. The trial court found that the City negligentlymaintained a latent defect at the library, the City’s immunity was removed and the Ci tywas on notice that the cur b cut was in a defective and dangerous condition before Mrs. Cross injur ed her ankle. The trial cour t found the City to be 100% at fault an d awarded Mrs. Cross $ 130,000 for her in jury.

The trial court awarded Mr. Cross $39,500.00 for his loss of consortium damages forthe period of time between the acci dent and the trial. The court also awarded Mr. Cross $78,000.00 for future loss of consortium, finding that Mr. Cross will need care in the future that Mrs. Cross will be unable to provide because of her ankle injury. This appeal by City followed.

II. Apportio nment of Fault4

After considering all the

evidence at trial and

the entire record in thi s case, the trial court made the following findi ngs of fact with regard to fault:

2. The curb

cut whe re the pl aintiff fell was located in close proximity to a handrail which the City had installe d prior to the acciden t da te. The curb cut, handrail and ramp area were dented [sic] a hazardous co ndition. 3. Th e area where plaintiff stepped w as hazardous to pedestriansas a res ult of t hr ee elements: (a) The City of Memphis installed the handrail next to the curb cut which invited patrons to step on the defective curb cut; (b) The parties stipulated that the curb cut andramp area did not meet the specifications of the Tennessee Building Code in that

they were substantially too steep;and (c) The curb cut wa s constructed with pea gravel which was a slick and would polish over time. 4. The City was on notic e tha t t he curb cut was hazar dous b efore Mrs. Cross fell and injured herself. Prior to her in jury , other p at rons had fallen on the ramp and in the area of the curb cut. The City admitted that the curb cut did not compl y with the Tennessee Building C ode at the tim e that the curb cut was installed. The hazardous c ondition was not

obvious. It was a latent condition not obvious to patrons. The trial court then found that: (1) The City had a duty to Mrs. Cross to maintain its premises in a reasonably safe condition; ( 2) The City breached that duty because the curb cut, ramp, and handrail combined to cr eate a dangerous and defective condi tion; (3) The City was on notice of the latent, dangerous and defe ctive sidewalk and therefore the City’s immunity was removed; (4) The neg ligence of the City was the s

ole cause in fact and the proximate cause of the injuries to Mrs. Cross and the loss of consortium suff ered by Mr. Cross; and (5) Georgia Cros s was not

at fault in any way in connection withher injury. She maintained a reasonably safe look out to protect herself from injury . The defective and dangerous condition was not obvious.
On appeal, the City contends that Mrs. Cross failed to use reasonable care und er the circumstances and accordi ngly, she was at fault for more than 51 % of the acci dent based on Tenne ssee’s co mparati ve fault l aw, and sh ould be b arred any r ecovery. The City argues that Mrs. Cross w as famil iar with this w alk ramp as she had visited the premises foryears prior to her fall. The City contends that the yellow paint on the curb cut distinguished it from th e rest of the walk ram p. The Cit y argues that Mrs. Cross failed to exercise the necessary precautio n and to maintain awareness of w here she was stepping while carrying

a 33-pound, one-year old c hild in her

arm. The City points to Mrs. Cross’s5

testimony that she was watching her children run ahead of her.

Th is matter was tried to the court without a jury. A trial court acting as trier of fac t has considerable latitude in alloca ting percentages of fault to neg ligent parties and appellate cou rts m ay alter those findings if they are clearly erroneous. Coln v. City of Savannah , 966 S.W.2d 34, 44 (Tenn. 1998). After hearing all the evidence in this matter, the trial court assessed th e negligence of the parties at 100% fault to the City and 0% fault to Mrs. Cross. This Court will alter this allocation of negligence only upon fin ding that the apportionment of the trial court was clearly erroneous.

At trial, Mrs. Cross testified that she was not in a hurry and she was pay ing attention to where she was going. On cr oss examination, Mrs. C ross stated, ”I obvious ly looked to
see where to step to know to step up. I knew where my children were, but not necessarily distracted by what they were doing that I didn’t know where the handrail was.” Mrs. Cross testified that she noticed the yell ow on the curb but it had no particular meaning to her other than possibly m eaning no t to park t here. Pla intiff ’s expert, Willi am Beaty, testified that there were no regulations or specifications which state what the color yellow means.

There is evidence in the record that the City knew the curb cut w

as defective and dangerous. Carol Share, the Poplar/White Station library manager, c omplained on various occasions to library management about patrons falling at the cur b cut. Merle Richardson , the Assi stant Director for Support Services for the Memphis and Shelby County Library System, admitted that thehandicapped ramp area was causing patrons to fall. Dan Jones, the Facility Manager for the librarysystem, had been charged w ith the responsibility , prior to Mrs. Cross’s inj ury, of investigati ng the curb cut anddetermining why i t was dangerous and defecti ve, and ho w it sh ould be fixed. Additionally , expert William Beaty stated that, “I don’t think the averag e person would see that ther e’s a danger there . . . I t’s not an obvious hazard.”

There was testim ony that the City deci ded to place a handrail in the center ofthe6

ramp to encourage patrons to s tay away from the

yellow caution curb p oints. Installin g a cen te r rail would require the City to drill through concrete. Installing a handrail in the soil next to the curb cut was considered “e asier,” safer for city employees and more “aesthetic .” Therefore, the City installe d the handrail adjacent to the cur b cut. The handrail was installed approxim ately five days prior to Mrs. Cross’s injury. This location of the handrail effectively drew patrons backto the defective area, rather th an away fro m it. Addi tionally, the location of the handrail tend ed to prohibit patrons from wal king across the gras s to avoid the curb cut. The City admitted that the cur b cut and ramp were too steep and out of compliance with the Tennessee C ode.
Upon our caref ul revi ew of the evidence in the recor d and the presumption of correctness afforded, this Court finds that the appor tionment of fault by the trial c ourt was not clearly erroneous.The trial court’s apporti onment of fault is affirmed.

III. Loss of Consortium

The trial court awarded Mr. Cross $118,000.00 for past and future loss of consortium ($39,500.00 past, $78,800.00 future). The C ity contends that the t rial court erred in setting the amount of damages at $39,500.00 for

loss of consortium from the time of the injury to the time of tr ial, and erred in grant ing Mr. Cross any award for future loss of consortiu m.

The amount to be awarded in person al injury cases res ts largely in the d iscretion of the trier of fact. Coakley v. Daniels , 840 S.W.2d 367, 372 (Tenn.App. 1992). The amount allowable as damages for personal injur ies in tort acti ons is not measured by fixed r ules of law, but

rests largely in the discretion of the trier of fact and is entitled to great weight in the appellate courts in the abs ence of a showing of fraud or cor ruption. Id

.

The trial court awarded Mr. Cross the sum of $39,500.00 for his loss ofconsortium up to the date of trial. The court ar rived at that figure by

finding that Mr. Cross

was entitled7

to $11,000.00 per year as damages for loss of co nsort ium. Since Mrs. Cross’s injury occurred approximately thre e a nd one-half years prior to trial, the court determined Mr. Cross’s loss of consorti um amounted to $39,500.00.

The trial court also aw

arded Mr. Cross the sum of $78,800.00 for his future loss of consortium. Mr. Cross was diagnosed with Amyotrophic Lateral Sclerosis (ALS), which
causes deterioration of the patient’s muscles and nervous system until death. Mr. Cross’s future loss ofconsortium claim for damages a rises from the loss of his wife’s services in assisting him as his condition deteriorates.

In Moyer v. Herman , No. 87-119-II, 198 7 Tenn.App. LEXIS 3208 ( Tenn.App., August 12, 1987), the term consortium was explained as follows:

The term . . . hasdeveloped to include the right of the w ife to the society and comfort of the husband , and is now used interchangeably to denote the affectio n, aid, assistance, companionship, comfort, and society of either spouse; and as thus employed theterm has been defined as, those duties and obligations

which by marriag e both husband and wife take on themselvestoward each other in sickness and health; conjugal affection; conjuga l fellowship; conjugal society and assistance; the conjugal society

arising by virtue of th e marriage contract; the consort’s affection, society , or aid; theperson’s affection, society or aid; the person, affection, assistance, and a id of the spouse. The loss ofconsortium is the loss of any or all of these rights. From the above, it appears that damages f orloss of con sortium arise when the wife i s deprived of the compan y , c ompanionship and assistance of the husband in al l th os e matter s in whi ch the hu sband w ould hav e benefit ted the w

ife if he had not been injured. In view of the recent statutory and judicial pronouncements on the subject of

the equality of spouses, the rightsof consortium need to be redefined to produce an equal ity of these rights, that is, the rights of the husband and th e wife to consortium should be identical. Id . at *18-*19.

The City argues

first that the evidence preponderates against the aw ard of loss of consortium damages in the amount of $39,500.00 to Mr. Cross for the three and one-half year period between the i njury and t rial. The City also asserts that the evidence8

preponderates against the award of future loss of consortium damages in the amount of $78,000.00 to Mr. Cross and argues that there is no legal authority in Tennessee for awarding d amag es for such a claim. We shall first address the award of past loss of consortium damages.

The record contains the testimony of Mrs. Cross and Mr. Cross regar ding the effects the injury had upon their lives. For the first few months after the injury, Mrs. C ross was not allowed to put any weight on her ankle. She was instr ucted to kee p it eleva ted for six weeks. Mrs. Cross was in a wheelchair after the injury, and later walked withthe assistance of crutches. The cast was taken off on February 6, 1995 and she then wore a Bledsoe boot forsome time. Mrs. Cross testified that the first 18 months were consumed wi th the ankle.

Mrs. Cross testified that after the injury she was unable to w alk up stairs to her bedroom so Mrs. Cross and her husband converted a downs tairs room into a bedro om. Mrs. Cross testified that she was unabl e to care for Mr. Cross during the first few months afterthe i njury. She recalled not being able to attend holiday parties, only attempting to attend the Christmas progr ams of the children.

Mrs. Cross testified that after her cast was removed on February 6, 1995 her ankle remained stiff, swollen and painful for months . She slept with her ankle above the covers because the pressure of the covers caused her dis

comfort. By

August 1995, her mobility in the ankle was very

limited and she was not able to do many things she used to do. Mrs Cross testified it remains painful to ride a bike, drive a car, walk

on sand, play tennis, ski, walk up and down stairs, walk on a driveway or any slanted surface, and she can not walk while carrying her youngest child. She testified that her ankle has not returned to normal. She testified further t hat her l ife has never gotten back to normal after this accident in termsof keeping the house. She is not able to do all of the things she could do before the accident. The more she tries to keep up w ith her schedule, the more pain and swelling

she has.9

M r. Cross tes tified as to the problems Mrs. Cross has had and how her injury damaged their marital relationship. He testified that the first five days when Mrs. Cross was in the hospital were absol ute chaos and things wer e about the same when she came home from the hospital . Mr. Cros s testified that during the period of time from Novemb er 28, 1994 through May 1995, his wife was in pain 24 hours a day and he and his wife were not able to tend to each other marital needs. He testified there were holiday activiti es that he and his wife would hav e attended but for the injury.
According to Mr. Cross, Mrs. Cross slept downstairs for three to four months while he slept in their bedroom upstai rs near the children. Mr. Cross couldn ’t recall if he was keeping his same hours at the office during that time because it was harder for him to

be away because there was

so much more he had to take on. Additionally, Mr. and Mrs. Cross did not have as much quiet time atthe end of the day because with the disrupted routine, the children went to bed lat er and Mr. and Mrs. Cr oss were tir ed and went to bed earlier than usual. Mr. Cross would get up in the mornings and help the children get dr essed and ready for school. Accordi ng to Mr. Cross, the injury caused a gr

eat deal of stress for him and anger at the situation that he felt could have been avoided. There w as stress between Mr. Cross and the chil dren and stress at work as a continuation of that.

Mr. Cross testified that up through the date of trial, no day is easy for Mrs. Cross

to get around on her ankle. He sees her ankle at the end of the day and it is generally
swo llen. He testi fied Mrs. Cross sleeps with her foot out from under the c over as the downward pressure of the sheet hurts her ankle. He testified that Mrs. Cross wears a brace
on her ankle every day and she limps w hen she walks . He testified that life has nev er gotten back to normal f or the two of the m, though she tries to do the same kinds of things that she was able to do for hi m befor e the inju ry.

In this non-jury case, the trial judge’s decision to award Mr. Cross damages for his loss of consortium hinges, at leas t in part, on witness credibili ty and should not be reversed unless there is found in the record clear, concrete and convincing evidence to the con trary.10

Airline Const. Inc. v. Barr , 807 S.W.2d 247, 26 4 (Tenn.App. 1990).
The trial judge heard all the evidence and had the benefit of observing the parti es as they testified. There is eviden ce in the record that Mr.Cross has been denied the company, companionship and assistance of his wife which he had before the accident. The evidence does not preponderate against the award of the trial cour t in the amount of $39,500.00 for past loss of consorti um.

The trial court also aw

arded Mr. Cross the amount of $78, 000.00 forfuture loss of
c onsortium. I n July, 1997 Mr. Cros s was diagnosed wi

th ALS. The progression of the disease is inevitable, devastating and fatal. Ultimately, Mr. Cross will be unable to walk or
move himself at will. He wi ll be confined to his bed and be compl etely dependant upon the assistance of others to care for him. Mr. Cross’s future loss of consortium cl aim is based upon his wife’s inabili

ty to assist him as his

condition deteriorates due t o her injury.
The City first argues that a claim for future loss of consortium is not reco gnized in Tennessee. We start from the general proposition that d amages awarded in a p e rsonal injuryaction must compensate for future as well as past suffering, since the injure d person
can maintain but one action for his damag es. Waller v. Sk eleton , 212 S.W.2d 690, 700 (Tenn.App. 1948). I n the cas e of Colonial Bakin g Co. v. Aquino , 103 S.W.2d 613 (Tenn.App. 1936), Mrs. Aqui no was injured and Mr. Aquino soughtdamages for the loss of past and future services of hi s wife at his pressing shop. The appellate court found that the judgment

awarded Mr. Aquino should be reduced, and that the sum of $5,000.00 would fairly compensate him for the present and futur e losses a nd expenses sustained. Id . at 623.

Tennessee Pattern Jury Instructions, while not themselves law, ins truct the jury on the law governing the case and aid the jury in the det ermination of damages. Tennessee Pattern Jury Instructi on 3-Civil 14.20 (1997) provides in pertinent part: If, in ac cor dance with these instruc tion, you are to determine damages for the p lainti ff ( injured spo u se ) you should also11 determine the damag es for th e plaint iff( other spouse ). ( Other spouse ) would be entitled to rec over the following elements of damage if established by the ev idence: 3. The reasonable value of the injured spouse’ s services this plaintiff has lost [ and the prese nt value of such serv ices plaintiff is reasonably certain to lose in the future ;] and 4. The reasonable value of the spouse’s companionship and acts of love and affection this pl aintiff has lost [ and the present cash value of such acts plaintiff is reasonably

certain to lose in the future ] but would have received in the usual course of the parties’ marri ed life. Id . (emphasis added).

We can find no authority agai nst the award of damages for future los s of consortium. The general rule is that da mages awarded in a personal injury action must compensate forfuture as well as past suffering. Furthermore, the courts routinely instruct juries, in awarding damages,to determine the present val ue of services a s po use is reasonably certain to lose in the future. For these reasons, we find that it is not error for a trial cour t to award damages for fut ure loss of c onsortium.

The City claims that ev en if th is Court were to recognize a claim for future loss of consortium, the damages are purel y speculat ive in this case. Tennessee law requires that damages for loss of an injured spouse’s tangible services as an ordi nary servant must be proved with exactness. All v. John Gerber Co. , 252 S.W.2d 138, 142 (T enn.App. 1952). The City contends that Mr. Cross’s claim that his wife, at some unknown point in the future and for s ome un known duration in the future, will be supposedly unable to provide him assistance because of her ankle i njury is too speculati ve.

In his videotaped deposition, Dr. Tulio E. Bertorini , M.D., testified that patients with ALS will need someone to help them dress and undress, to use the restroom, to get in and out of a wheelchair, to clean and bathe them and to give them medi cation. After thepatient has a gastrostomy, the pati ent will need someone to feed them through thegastrosto my. When the individual requires a tracheotomy, they will need someone to suction the trach, clean the trach, deflate, inflate and hook the individual up to a ventilator. At this point, the12

patient is generally

bedridden and must be turned in the bed to avoid getting bed sores.

Dr. Bertor ini test ified that Mr. Cro ss has ALS. He tes tified that Mr. Cross will go through all of these stages as the disease progresses although AL S progresses at different rates in different people. He testified that Mr. Cross will, to a reasonable degree of medical certaint y, need full time care. He testified that he expected Mr. C ross, to a reasonable degree of medical certainty , to be bed bound within two year s of the date of his April 15, 1998 tes timony.

Dr. Greer Richardson studi ed Mrs. Cross’s ankl e in A ugust 199 5 and determined that her ankle had develop ed traum atic arthritis as a result of her ankle fracture. Dr. Richardson testified that traumatic arthr itis occur s when the ca rtilage space whic h cushions the joint is so badly traumatized that it begins to deteriorate and wear away. Ul

timately, the cartilage disintegrates and the joint bones rub

and wear against each other causing great pain, swellin g and los t mobility. Dr. Richardson testified that in order to eliminate Mrs. Cross’s right ankle pain, the joint will need to be fused. This will cause her to lose all mobility i n her right ankle and may ultim ately caus e knee an d hip inju ry.

The parties stipulated to the te stimony of Nancy Wilson, an R.N. w ith Baptist Trinity Home Care agencyand her videotaped depositio n was made an exhibit. Wilson testified that a female can have the physical ability

to provide care to

a male patient with ALS. She testified that an ALS caregiver would need to h ave good body mechanics and have very good balance. To assist a patient from bed to wheelchair, the patient would put hands on the caregiver’s shoul ders. The caregiver would grasp the patient under the arms and help lift straight up

and then pivot over and do wn in the chair. The caregiver is required to piv

ot during this process.

Wilson further testified that onc e the patient is no longer able to move at all for himself, dressi ng and ba thing t he patie nt is difficult because h e has to be lifted . To fe e d
an ALS patient, the caregiver needs t o lift the patient to a

sitting position. To change the13

linens with the patient in bed, the caregiver has to roll the patient completely on the side and change the bed one half at a time. W ilso n t estified that to change the bed linens a caregiver woul d need good balance and strength.
According to Wilson, spouses can be trained to provideall this type of care and she has had occasion to train spouses of patients with ALS. Wilson testified that a woman with traumatic arthritis like Mrs. Cross would not be able to prov ide an ALS patient the custodial
care he would need because the lack of mobility in the ankle makes the risk of injury to the patient too great.

Dr. Tulio Bertorini also tes tified that it is common for family members to care for ALS p atients. Dr. Bertorini testified that Mrs. Cross w ould have otherwise had the intellectual ability to be trained to provide ca re to he r husband. Dr. Richardson, Mrs. Cross’s orthopedic surgeon, testified that in her current condition, Mrs. Cross cannot provide the type of assistance Mr. C ross will need as a r esult of his disease.
Nancy Wilson testified as to the costs of caring for a patient with ALS. An exhibi t
was introduced which laid out the ranges for cost of care for ALS patients as the patient’s condition deteriorates. Depending u pon the extent of care requi red, the cost ranges from $39,420 .00 to $2 42,360. 00 annua lly.

In granting Mr. Cr

oss a judgment for future loss of con sortium damages in the amount of $78,000.00, the trial court stated that it took a conservative view of those figures included in E xhibit 1 under custodial care. We agree with the trial court that Mr. Cross’s future loss of consortium is not speculative. Thi s Court find s that the evidence does not preponderate against the tri al court’s award of damag es for future loss of consortium.

IV. Conclusion

The judgment of the trial court is hereby affirmed. Costs of thi s appeal are taxed to14

Appella nt, for wh ich execut ion may iss ue if nec essary.

HIGHERS, J. CONCUR:

CRAWFORD, P.J., W.S.
FARMER, J.