Day on Torts
In Lurks v. City of Newbern, Tennessee, No. W2016-01532-COA-R3-CV (Tenn. Ct. App. Jan. 26, 2017), the Court of Appeals reminded us once again that evidence of a fall is not enough to establish liability in a slip and fall premises liability case.
Here, plaintiff was walking on a city-owned and maintained sidewalk outside her home. She walked this sidewalk often, as she and her husband owned a vacant lot next to her home as well as a rental property on the same street. According to her testimony, she was aware that the sidewalk was in poor condition and had complained to the city. On this particular day, she fell on the sidewalk, sustaining an injury that eventually required knee surgery.
At trial, plaintiff testified that “she fell immediately, that she did not stumble and fall, and that she did not know what caused her to fall or whether her foot hit anything that caused her to fall.” As there were no witnesses to plaintiff’s fall, “there was no testimony at all by anyone regarding what caused [plaintiff] to fall.” The trial court ruled that the sidewalk was in fact defective, but that the case should be dismissed because “there was no proof as to the cause of [plaintiff’s] fall,” and the Court of Appeals affirmed.
After outlining the elements of a negligence claim, the Court of Appeals noted that “once a plaintiff establishes duty and breach of duty, and presents evidence of an injury, the plaintiff must next establish causation.” (internal citation omitted). The Court pointed out that Tennessee common law holds that a court “will not presume negligence simply because an accident occurred.”
Negligence is not to be presumed from the mere happening of an accident. Negligence shall not be presumed absent an affirmative demonstration from the evidence. Therefore, in the context of injuries to plaintiffs resulting from a fall, mere speculation about the cause of an injury is insufficient to establish liability on a negligence claim. As such, a plaintiff will be prevented from establishing negligence when he, either personally or with the use of outside witnesses, is unable to identify what caused the fall. In other words, a plaintiff must know what caused him to slip and fall. A plaintiff cannot speculate as to what caused the fall.
(quoting Pittinger v. Ruby Tuesday, Inc., No. 2006-00266-COA-R3-CV, 2007 WL 935713 (Tenn. Ct. App. Mar. 28, 2007)).
In the present matter, neither plaintiff nor any witnesses could testify regarding the cause of the fall. When asked whether she knew what caused her to fall, plaintiff replied “no.” Accordingly, the Court of Appeals affirmed dismissal, holding that plaintiff “failed to prove that the defective condition of the sidewalk was the cause of [plaintiff’s] fall[.]”
Here, a lack of required proof cost plaintiff greatly. In a footnote, the Court of Appeals pointed out that the trial court stated that if it was wrong about the causation issue, it would award plaintiff damages of $70,000, plus $10,000 to her husband, reduced by a 20% comparative fault finding. Plaintiff had presented enough evidence to show that the sidewalk was defective, but failed to offer sufficient proof on the causation issue, an essential element of any negligence claim. Accordingly, plaintiff lost out on an award of $62,000.
Query: why shouldn’t a jury be able to decide that the most likely cause of the fall was the defective condition if the preponderance of the evidence supports no other reason that the plaintiff fell in that location?