Appellate Court To Apply a Clearly Erroneous Standard of Review, Coln v. City of Savannah, 966

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

GEORGIA CROSS, ET AL. v. CITY OF MEMPHIS

Appeal from the Circuit Court for Shelby County

No. 72984-6 T.D. George H. Brown, Jr., Judge

No. W 1998-00091-SC-R11-CV — Decided June 20, 2000

This is an appeal from the Circuit Court for Shelby County which, following a bench trial, allocated

100% fault to the City of Memphis for an accident in which Georgia Cross was injured. On appeal,

the Court of Appeals applied a “clearly erroneous” standard of review and affirmed the judgment

of the trial court. We granted the City’s application for permission to appeal. We hold that, when

reviewing a trial court’s findings of fact, an appellate court must apply the de novo standard of

review contained in Tennessee Rule of Appellate Procedure 13(d). To the extent that it permits an

appellate court to apply a clearly erroneous standard of review, Coln v. City of Savannah, 966

S.W.2d 34 (Tenn. 1998), is clarified. In addition, the clearly erroneous language of Wright v. City

of Knoxville, 898 S.W.2d 177 (Tenn. 1995), is limited to jury cases. Having reviewed the record

and applying the relevant standard of review, we also hold that the trial court and the Court of

Appeals erred in allocating 100% fault to the City of Memphis. We conclude that Georgia Cross

should be allocated 20% fault for the accident in this case, that the City of Memphis should be

allocated 80% fault, and that the claims of both Georgia and Norman Cross should be reduced to

reflect the appropriate allocation of fault. Accordingly, we reverse the judgments of the trial court

and the Court of Appeals and remand to the trial court for further proceedings.

Tenn. R. App. P. 11; Judgment of the Court of Appeals is Reversed and Remanded

BARKER, J., delivered the opinion of the court, in which ANDERSON, C.J., and BIRCH and HOLDER ,

JJ., joined. DROWOTA , J., not participating.

Michael F. Rafferty, Jonathan E. Scharff, and Brett A. Hughes, Memphis, Tennessee, for the

appellant, City of Memphis.

Cannon F. Allen, Brian S. Faughnan, and Mark S. Norris, Memphis, Tennessee, for the appellees,

Georgia Cross, et al.

OPINION

The City of Memphis has owned and maintained the Poplar–White Station branch of the

Memphis and Shelby County Public Library since the branch opened. A ramp, which was installed

at the library in 1981, runs from the entrance in a slight downward slope to the street running in front

of the library. The City had curb cuts on either side of the base of the ramp, and each curb cut was

painted yellow. However, the degree of slope of the curb cuts did not comply with the City’s

construction code. On November 24, 1994, the City installed a handrail on the right side of the ramp

facing the building.

Four days later, on November 28, 1994, Georgia Cross visited the library. Cross, who had

been taking her children to this library for four years, parked her vehicle beside the yellow painted

portion of the curb cut. Cross was carrying one of her four children on her right hip when she

noticed the handrail on the right. Cross testified that she assumed the handrail was installed to

prevent people from walking to the entrance of the library across a grassy area located to the right

of the handrail, and she did not use the handrail. Cross proceeded directly to the walk ramp which

she had walked up a number of times previously. Cross testified that as she started walking on the

ramp, she was looking at two of her children who had run ahead of her. As Cross stepped on to the

yellow curb cut with her right foot, the foot slid and her ankle gave and broke in three places. Cross

was hospitalized for one week after the accident, was bedridden for several more months, and

continues to suffer from traumatic arthritis.

Following the accident, Cross filed suit for damages against the City pursuant to the

Tennessee Governmental Tort Liability Act. Norman Cross, Georgia Cross’s husband, also sought

damages for loss of consortium and loss of future consortium. After the accident but before the trial,

Norman Cross was diagnosed with amyotrophic lateral sclerosis, which carries a life expectancy of

between two and three years from diagnosis.

At the conclusion of a bench trial, the court found that the City was negligent in creating the

conditions that caused Cross to slip and fall, and it allocated 100% fault to the City and 0% fault to

Georgia Cross. The court awarded $130,000.00 to Georgia Cross for her claim and $39,500.00 to

Norman Cross for loss of consortium. The court also found that, as a result of her injury, Georgia

Cross will be unable to care for her husband, and it awarded $78,800.00 to Norman Cross for future

loss of consortium.

The City appealed arguing that Cross failed to use reasonable care under the circumstances,

was at fault for more than 51% of the accident, and was, therefore, barred from recovery. In

reviewing the trial court’s apportionment of fault, the Court of Appeals applied a clearly erroneous

standard with a presumption of correctness. The appellate court concluded that the trial court’s

apportionment was not clearly erroneous, and it affirmed the trial court’s decision. The City then

sought and this Court granted permission to appeal on the following issue: whether the Court of

Appeals erred in applying a clearly erroneous standard of review in the trial court’s allocation of

fault, rather than the de novo standard of review provided for in Tennessee Rule of Appellate

Procedure 13(d).

DISCUSSION

Tennessee Rule of Appellate Procedure 13(d) provides:

Unless otherwise required by statute, review of findings of fact by the trial court in

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civil actions shall be de novo upon the record of the trial court, accompanied by a

presumption of the correctness of the finding, unless the preponderance of the

evidence is otherwise.

In Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn. 1995), this Court examined a trial

court’s allocation of fault in a bench trial. With regard to this issue, the Court stated:

Although it is true that the trier of fact has considerable latitude in allocating

percentages of fault to negligent parties, see, e.g., Martin v. Bussart, 292 Minn. 29,

193 N.W.2d 134 (1971), appellate courts may alter those findings if they are clearly

erroneous. Because this case was tried without a jury, our review of the issues of fact

is de novo on the record of the trial court. However, we must presume that the trial

court’s findings were correct unless the preponderance of the evidence is otherwise.

Tenn. R. App. P. 13(d).

Id. at 181 (emphasis added). The Court’s analysis in Wright appears to contemplate two different

standards of review: clearly erroneous and de novo.

Two years later, the Court of Appeals attempted to resolve this apparently contradictory

language. In Varner v. Perryman, 969 S.W.2d 410 (Tenn. Ct. App. 1997), the court distinguished

the portion of Wright that suggests a clearly erroneous standard would apply to allocations of fault

in a bench trial. The court observed that Wright cited to a jury case, Martin v. Bussart, in discussing

the clearly erroneous standard. See id. at 411. In non-jury cases, though, the court concluded that

the de novo standard of Rule 13(d) was controlling. See id.

While it would appear that Rule 13(d) addresses and answers the issue now before this Court,

our opinion in Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), has created some confusion

with regard to the applicable standard of review. In Coln, this Court examined a trial court’s

allocation of fault. The Court cited Rule 13(d) but also quoted the “clearly erroneous” language

from Wright. The Court applied Rule 13(d), however, in affording the trial court’s findings a

presumption of correctness. See id. at 45.

Accordingly, we clarify Coln to the extent that it appeared to permit an appellate court to

apply a clearly erroneous standard of review to a trial court’s findings of fact. Moreover, we limit

the clearly erroneous language in Wright to jury cases. We hold that the de novo standard of review

in Rule 13(d) is the applicable standard of appellate review for findings of fact made by a trial court.

Accordingly, we reverse the Court of Appeals with regard to the standard of review that is applied

to a trial court’s findings of fact.

In the interest of judicial economy and because the standard of review is de novo, we will

also examine whether the trial court erred in allocating 100% fault to the City of Memphis and 0%

fault to Cross. Our review is de novo upon the record. Tenn. R. App. P. 13(d). We presume the

correctness of the trial court’s findings of fact which will be set aside only if the preponderance of

the evidence is otherwise. See id.

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Having reviewed the record using that standard, we conclude that Georgia Cross is

responsible for some fault in this case. Cross had visited the library before and had walked up the

ramp a number of times after it had been installed in 1981. Thus, she was quite familiar with the

area. Cross testified that she saw the handrail when she arrived at the library and that she was aware

that the curb cut was painted bright yellow. She did not use the handrail, though, but carried a child

on her right hip. Moreover, as she stepped onto the curb cut, she did not look down at the painted

portion of the curb but was watching two of her children who had run ahead of her toward the library

door.

Under these circumstances, we conclude that Cross should be allocated 20% fault for the

accident, and the City should be allocated 80% fault. Thus, the trial court’s judgment is modified

to reflect the appropriate allocation of fault. Moreover, because Norman Cross’s claim for loss of

consortium is derivative, his amount of recovery must also be reduced by the percentage of fault

allocated to his spouse. Cf. Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 108-09 (Tenn. 1996).

CONCLUSION

We hold that, when reviewing a trial court’s findings of fact, an appellate court must apply

the de novo standard of review contained in Tennessee Rule of Appellate Procedure 13(d). To the

extent that it permits an appellate court to apply a clearly erroneous standard of review, Coln v. City

of Savannah, 966 S.W.2d 34 (Tenn. 1998), is clarified. In addition, the clearly erroneous language

of Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn. 1995), is limited to jury cases. Accordingly,

we reverse the Court of Appeals with regard to the standard of review that is applied to a trial court’s

findings of fact.

Having reviewed the record and applying the appropriate standard of review, we also hold

that the trial court and the Court of Appeals erred in allocating 100% fault to the City of Memphis.

We conclude that Georgia Cross should be allocated 20% fault for the accident in this case, that the

City of Memphis should be allocated 80% fault, and that the claims of both Georgia and Norman

Cross should be reduced to reflect the appropriate allocation of fault. We reverse the judgments of

the trial court and the Court of Appeals and remand to the trial court for further proceedings

consistent with this opinion.

Costs of this appeal are taxed to the appellees, Georgia Cross, et al.

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