Not every fall results in a successful premises liability case, as the plaintiffs in a recent Tennessee Court of Appeals case were reminded.
In Woodgett v. Vaughan, No. M2016-00250-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2016), plaintiff filed suit after falling while she was viewing defendants’ home, which was listed for sale. Plaintiff’s husband was a realtor, so he contacted the listing agent about viewing defendants’ home. Defendants had already moved out and removed all of their belongings, so plaintiff and her husband were allowed to view the home on their own. In the upstairs bonus room there was a door that led to the attic access. The landing that accessed the attic was raised, so defendants had hired someone to build a wooden box to use as a step to get to the landing. The step was made with two-by-twelves, measured 9.5 inches high, 39 inches wide and 10.75 inches deep, and was covered with carpet. The step could be moved out of the way and was not affixed to the landing, as it was sometimes moved to accommodate furniture passing through the area. Defendants had “used the step for twenty years without incident.” According to plaintiff, when she used the step while viewing the home, it “gave way” and made her fall.
After a jury trial, the jury found that defendants were not at fault for the fall. Plaintiff appealed, citing five issues in her brief. The Court, however, deemed two of the issues waived, because despite listing them, plaintiff “failed to develop an argument” regarding these issues in the argument section of her appellate brief.
The first issue that the Court deemed to be both identified and properly argued in plaintiff’s brief revolved around the trial court’s admission of surveillance video taken by a private investigator hired by defendant. Plaintiff testified at trial that after her fall she could not walk a lot, could not stand too long, could not bend or “stand straight up” after bending or sitting. She further stated that “she limped and dragged her leg for three to four years after the fall and still was not active by the time of trial seven years later.” Defendants hired a private investigator to record plaintiff, and he videoed her “walking in and out of various locations, walking in heels, standing outside talking with a friend, and getting in and out of a Cadillac Escalade without difficulty.” The trial court allowed the jury to watch the videos, “concluding that they were probative as to [plaintiff’s] credibility, her symptoms, and the effects of the alleged injury.” On appeal, plaintiff argued that the videos should not have been admitted because they “held [plaintiff] out as a person of means, driving a Cadillac Escalade, driving several other cars, shopping…and driving fast on the interstate.” The Court of Appeals rejected plaintiff’s argument, finding that the trial judge did not abuse his discretion in admitting the videos. The Court reasoned:
Given [plaintiff’s] testimony about her physical limitations, video evidence of her walking in heels and climbing in and out of a large vehicle was certainly relevant to the issues at trial. The brand of that vehicle and the speed at which she drove do not lead us to conclude otherwise or to deem the video inadmissible.
The second issue that was properly identified and argued in plaintiff’s brief involved defense counsel’s closing argument. Plaintiff asserted that counsel for defendant said “ladies and gentlemen of the jury you have to protect Maury County” during his closing argument. Because plaintiffs and plaintiffs’ two attorneys were black, plaintiff argued that this statement “was highly prejudicial and served no purpose but to inflame the all-white jury.” The biggest problem with this argument, however, was that defense counsel did not appear to have made this statement. The Court stated:
Notably, [plaintiff] does not cite to any location in the record where this statement was allegedly made. This Court has carefully reviewed the transcript of the jury trial and specifically the closing arguments made by the attorneys, and we are confident that no such statement was made by defense counsel.
The Court noted portions of the defense’s closing argument that stated that the jury was “the voice of Maury County” and the “deciders…for Maury County,” but the Court found that these excerpts were “a far cry from the statement that counsel for [plaintiff] includes in her brief purportedly as a direct quote.” Accordingly, the Court found “no merit in this issue.”
The third issue raised by plaintiff related to the calculation of damages, but because no damages were to be awarded, this issue was not addressed. Because the Court rejected plaintiff’s arguments on both of her properly briefed issues, the verdict for the defendant was affirmed.
This case emphasizes the importance handling all cases with care and precision. Here, two of the issues plaintiff identified in her appellate brief were deemed waived because, although they were listed, plaintiff “failed to develop an argument regarding the issue[s]” in her brief. Most notably, the issue of whether a dangerous condition existed, which is the issue of utmost importance in a premises liability case, was deemed waived. Because of this issue with the brief, it is unclear whether the trial court’s decision regarding whether the unsecured box constituted a dangerous condition would have stood on appeal.
Finally, one has to wonder why it took seven years to get this case to trial. The case had to be filed within one year. Assuming that it was filed on the last possible day, it took six years – over 2000 days to get this case to trial. True, the case was nonsuited, but even that is no excuse. Perhaps there was a good excuse for the delay but it is not evident from the opinoin of the Court of Appeals.