Apartment that failed to maintain wooden bridge liable to tenant in premises liability suit.

A premises liability judgment for plaintiff was affirmed where plaintiff slipped and fell on a wooden bridge at defendant apartment complex, representatives of defendant had stated that the standard of care required that the bridge be power washed at least annually, and the evidence showed that the bridge had not been power washed in at least several years.

In Trentham v. Mid-America Apartments, LP, No. M2021-01511-COA-R3-CV, 2023 WL 163547 (Tenn. Ct. App. Jan. 12, 2023), plaintiff was a tenant in defendant’s apartment building. Plaintiff’s building was connected to the clubhouse fitness facility by a wooden bridge. On the day of plaintiff’s injury, it had rained the night before and was possibly still drizzling. Plaintiff used the bridge to access the fitness room, and when walking back across the bridge after his workout, plaintiff slipped on what he described as a clear, slippery substance that was “obviously not just water.” Plaintiff could not get his footing to stand up, and an employee of defendant could not get plaintiff back to his feet, so an ambulance was called.

Plaintiff’s fall caused severe injury to his left quadriceps tendon, requiring surgery. The first surgery was unsuccessful, and plaintiff underwent a second revision surgery. That surgery was also unsuccessful, and at the time of the trial plaintiff was left with permanent disability from the incident.

Plaintiff filed this premises liability claim, asserting theories of negligence and negligence per se. During the bench trial, plaintiff testified about the clear, slippery substance on the bridge. Plaintiff also presented evidence that defendant’s employee stated during discovery and a deposition that the standard of care for the bridge required it to be pressure washed at least annually, but that defendant had not pressure washed the bridge in at least the two years preceding plaintiff’s fall. Another of defendant’s employees stated that the bridge was never washed, cleaned, or treated. Plaintiff also presented expert testimony that microbial growth on the bridge would cause the slickness plaintiff encountered. During the trial, defendant did not call any witness with direct knowledge of the bridge’s condition, and defendant’s expert admitted that the wooden bridge could grow algae and mold. Both sides also presented testimony regarding whether the bridge was up to code in terms of railings and slip-resistant surfacing.

The trial court ultimately ruled in favor of plaintiff, finding that plaintiff had proven his negligence case. The trial court assigned plaintiff 15% of the fault and awarded plaintiff a total of over $2 million in damages. On appeal, the trial court’s ruling was affirmed.

In Tennessee, a landlord “is under a continuing duty to use reasonable care to keep in good repair and safe condition the common area(s) available to those lawfully on the premises and has a duty to correct an unsafe condition within a reasonable period of time once the landlord has actual or constructive notice of the condition.” (internal citation and quotations omitted). “A landlord can be held liable where the unsafe condition existed long enough that the landlord, exercising ordinary care, should have discovered and corrected the unsafe condition.” (internal citation omitted). To prove a premises liability case, a plaintiff must show that the defendant had actual or constructive notice. Further, “a duty will not arise in a premises liability case unless the particular injury was reasonably foreseeable to the premises owner.” (internal citation omitted).

When considering whether plaintiff met his burden of showing that defendant owed a duty in this case, the Court of Appeals noted that plaintiff’s testimony regarding a slick substance on the bridge never changed, and defendant’s employee testified that the standard of care required pressure washing which was not done. The trial court found plaintiff’s testimony about the slippery surface credible, and both plaintiff’s and defendant’s expert testified that algae or mold could have grown on the bridge. Further, defendant did not call any witnesses to contradict this testimony. Based on this evidence, the Court of Appeals ruled that “the trial court’s finding that there was a microbial growth on the bride creating an unsafe condition and its determination that [defendant] was on constructive notice of this dangerous condition [was] supported by a preponderance of the evidence.”

The Court next looked at whether plaintiff had shown that defendant’s conduct was the factual and legal cause of his injuries, ruling that he had. The Court quoted the trial court’s finding that defendant’s “failure to maintain the bridge free of slimy natural growth” was “more likely than not” the cause of the fall, that it was reasonably foreseeable that someone would fall on the bridge due to the build-up, and that defendant “presented no intervening cause or public policy restriction which would militate against a finding of legal cause.”

Third, the Court analyzed the trial court’s allocation of 15% of comparative fault to plaintiff and 85% of fault to defendant. The Court cited the six factors to be considered when assigning fault and noted that defendant “had ample opportunity to discover the substance, simple pressure washing would have removed slime, and [defendant] had a pressure washer on site for ready use when needed.” Regarding plaintiff’s behavior, the Court cited the trial court’s findings that plaintiff knew the wooden bridge was sloped, knew it had been raining, “did not approach the bridge cautiously, slow his pace, or adjust his carriage,” and that he did not use the bridge railing. Based on these facts, the Court of Appeals affirmed the comparative fault allocation.

The final issue on appeal concerned whether the trial court had correctly calculated plaintiff’s future lost earning capacity. Plaintiff was a 70-year-old attorney, and the trial court awarded him over $679,000 in future lost earning capacity (reduced by his 15% comparative fault). The trial court based this award on plaintiff’s expert’s testimony, who derived a number from plaintiff’s 2020 lost earnings and “projected that figure forward using the same employment cost index, and then reduced that figure to present value to derive an annual lost earning figure for the two-and-a-half years” remaining in plaintiff’s work-life expectancy. Defendant argued that this figure was based “solely on lost income” and that it should have been “measured by the extent of impairment to the plaintiff’s ability to earn a living.” Defendant also argued that the figure “erroneously include[d] lost business profits.”

The Court of Appeals pointed out that “lost earning capacity is usually arrived at by comparing what the person would have been capable of earning but for the injury with what the person is capable of earning after the injury.” (internal citation omitted). With a permanent injury like the one plaintiff suffered here, “the amount of lost earning capacity should be multiplied by the injured person’s work life expectancy and then discounted to its present value.” (internal citation omitted). Based on this caselaw, the expert testimony, and plaintiff’s testimony that whether he was an equity or non-equity law partner did not have a material impact on his compensation, the Court of Appeals found the award proper. Accordingly, the trial court’s ruling was affirmed in whole.

Plaintiff’s complaint had included a claim for negligence per se, and issues surrounding which code sections were applicable to the bridge had arisen at trial, but because the trial court’s ruling was affirmed on the common law negligence theory, the Court did not address negligence per se on appeal.

This opinion has some good analysis of landlord premises liability, but it’s also worth reading for anyone litigating lost earning capacity issues.  It is important to note that the plaintiff in this case is highly regarded medical malpractice defense lawyer and a great guy, Bob Trentham.

This opinion was released three months after oral arguments in this case.

Note:  Chapter 25, Section 10 and Chapter 97, Sections 4 and 10 of Day on Torts: Leading Cases in Tennessee Tort Law have been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases.  The 500,000+ word book  (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law.  Click on the link to see the book’s Table of Contents.

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