Edna Green v. St. George's Episcopal Church

11/16/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 5, 2017 Session

EDNA GREEN v. ST. GEORGE’S EPISCOPAL CHURCH

Appeal from the Circuit Court for Davidson County

No. 14C-5008 Kelvin D. Jones III, Judge

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No. M2017-00413-COA-R3-CV

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This appeal arises from a jury verdict in a personal injury action. The defendant alleged

the comparative fault of a nonparty who was potentially immune from liability under

Tennessee’s agritourism statute. See Tenn. Code Ann. §§ 43-39-101 to -103 (Supp.

2018). Before trial, the defendant asked the court to exclude all evidence and argument

before the jury regarding statutory immunity as irrelevant and prejudicial. The court

excluded argument and evidence of immunity but allowed the parties to present evidence

on whether the nonparty had complied with the statute. At the conclusion of the trial, the

court permitted the jury to apportion a percentage of fault to the nonparty without

considering the nonparty’s compliance with the agritourism statute. On appeal, the

plaintiff argues that the trial court erred in allowing the jury to allocate fault to the

nonparty because the agritourism statute provided immunity from fault as well as

liability. We conclude that nothing in the agritourism statute precludes the allocation of

fault to a nonparty agritourism professional in a negligence action. So we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S. and RICHARD H. DINKINS, J., joined.

Timothy T. Ishii, Nashville, Tennessee, for the appellant, Edna Green.

Jason K. Murrie and Thomas I. Carlton, Jr., Nashville, Tennessee, for the appellee, St.

George’s Episcopal Church.

OPINION

I.

In June 2013, Edna Green, a parishioner of St. George’s Episcopal Church,

participated in a church-sponsored outing to a local farm. She was transported to the

farm on a bus owned by the church and driven by a fellow parishioner. The farm had a

gravel driveway with a posted speed limit of five miles per hour. The driveway

contained two drainage berms designed to combat erosion. When the bus crossed over

the berms, the resulting jolt severely injured Ms. Green. The bus driver maintained that

he never saw the drainage berms and, at the time of impact, the bus was traveling

approximately five to ten miles per hour.

On November 25, 2014, Ms. Green filed a personal injury action against

St. George’s Episcopal Church in the Circuit Court for Davidson County, Tennessee.

St. George’s, in its answer, alleged the comparative fault of Partnership Management

Services, Inc. d/b/a Green Door Gourmet (“Green Door Gourmet”). But Ms. Green never

amended her complaint to include Green Door Gourmet as a defendant.

Ms. Green moved for partial summary judgment on the affirmative defense of

comparative fault, arguing that Tennessee’s agritourism statute precluded a finding that

Green Door Gourmet’s conduct caused or contributed to her injuries. See Tenn. Code

Ann. §§ 43-39-101 to -103 (Supp. 2018). St. George’s opposed the motion and also filed

a motion in limine to exclude any evidence or discussion in the presence of the jury about

the agritourism statute. St. George’s argued that, although Green Door Gourmet was

potentially immune from liability, the jury could still apportion fault to an immune party.

So it maintained that any evidence about the statute was irrelevant and prejudicial.

The trial court denied the motion for partial summary judgment and granted the

motion in limine in part. The court excluded any references to the statute or discussions

of immunity in the presence of the jury but allowed the parties to introduce evidence of

either Green Door Gourmet’s compliance or lack of compliance with the statute. The

court ruled that the jury could apportion fault to Green Door Gourmet only if it found that

the farm was not entitled to statutory immunity. The court denied St. George’s request to

reconsider, and the case proceeded to trial.

Ms. Green submitted a special verdict form to aid the jury in determining whether

Green Door Gourmet had complied with the agritourism statute. But, after reconsidering

its previous ruling permitting evidence of compliance with the statute, the court chose not

to use the proposed verdict form. Instead, the court prohibited Ms. Green from arguing at

closing that Green Door Gourmet was not at fault because of compliance with the statute.

So the jury was free to allocate a percentage of fault to the farm.

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The jury returned a verdict in Ms. Green’s favor but apportioned fault 15% to

St. George’s and 85% to Green Door Gourmet. The trial court approved the jury verdict

and entered judgment for Ms. Green. After the court denied her motion for a new trial,

Ms. Green appealed to this Court.

II.

Ms. Green contends the trial court erred in granting St. George’s motion in limine

and declining to use her special verdict form. The resolution of both issues depends on

the meaning of the agritourism statute. Statutory interpretation is a question of law,

which we review de novo with no presumption of correctness. Davis ex rel. Davis v.

Ibach, 465 S.W.3d 570, 573 (Tenn. 2015).

A.

Tennessee has adopted a modified version of comparative fault. See McIntyre v.

Balentine, 833 S.W.2d 52, 57 (Tenn. 1992). By closely linking liability to fault, our

supreme court sought to “strike[] the proper balance between the plaintiff’s interest in

being made whole with the defendant’s interest in paying only those damages for which

the defendant is responsible.” Banks v. Elks Club Pride of Tenn. 1102, 301 S.W.3d 214,

220 (Tenn. 2010). Thus, a defendant may “allege, as an affirmative defense, that a

nonparty caused or contributed to the [plaintiff’s] injury,” and if negligence is proven, the

jury may apportion a percentage of fault to the nonparty. McIntyre, 833 S.W.2d at 58;

see Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn. 2000) (“[A] jury can apportion fault to a

nonparty only after it is convinced that the defendant’s burden of establishing that a

nonparty caused or contributed to the plaintiff’s injury has been met.”).

Tennessee “broadly permit[s] allocation of fault to all persons involved in an

injury-causing event.” Carroll, 29 S.W.3d at 21. “[W]hen a defendant raises the

nonparty defense in a negligence action, a jury may generally apportion fault to immune

nonparties.” Id. at 19. The goal of our comparative fault regime—“a fair and tight fit”

between fault and liability—cannot be achieved “when some participants to an act of

negligence are excluded from the apportionment of fault.” Id. at 20. For the same

reason, juries may allocate fault to nonparties who are “effectively immune” from

liability due to a statute of repose. Dotson v. Blake, 29 S.W.3d 26, 29 (Tenn. 2000).

But there are exceptions to the rule. In tort cases involving work-related injuries, a

jury cannot apportion fault to the plaintiff’s employer due to the unique workings of our

workers’ compensation scheme. Carroll, 29 S.W.3d at 19; Snyder v. LTG Lufttechnische

GmbH, 955 S.W.2d 252, 256 (Tenn. 1997); Ridings v. Ralph M. Parsons Co., 914

S.W.2d 79, 82 (Tenn. 1996).

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Our supreme court has recognized another exception to the broad general rule

based on an explicit legislative finding in the Dram Shop Act. Biscan v. Brown, 160

S.W.3d 462, 474 (Tenn. 2005); see Tenn. Code Ann. § 57-10-101 (2018). The legislature

has determined that “the consumption of any alcoholic beverage or beer rather than the

furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted

upon another by an intoxicated person.” Tenn. Code Ann. § 57-10-101. Our supreme

court held that this statutory language evidenced a policy determination that “persons

who furnish alcohol are not at fault for injuries inflicted by an intoxicated person” unless

a specific statutory exception applied. Biscan, 160 S.W.3d at 472-73; see Tenn. Code

Ann. § 57-10-102. Thus, a jury may not apportion fault to an individual who furnishes

alcohol in a social setting because the statute “removes, as a matter of law, the required

element of legal causation.” Biscan, 160 S.W.3d at 472.

B.

With this background, we consider the agritourism statute. Our goal in statutory

interpretation is to “ascertain and effectuate the legislature’s intent.” Kite v. Kite, 22

S.W.3d 803, 805 (Tenn. 1997). When a statute’s language is unambiguous, we derive

legislative intent from the statute’s plain language. Carson Creek Vacation Resorts, Inc.

v. Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). The words used in the statute should

be given their natural, ordinary meaning “in the context in which they appear in the

statute and in light of the statute’s general purpose.” Lee Med., Inc. v. Beecher, 312

S.W.3d 515, 526 (Tenn. 2010).

Subject to exceptions that are inapplicable here,1 the statute provides:

(1) No agritourism professional shall be liable for injury to or death of a

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Liability is not limited if the agritourism professional

(1) Commits an act or omission that constitutes reckless disregard for the safety of the

participant, and that act or omission proximately causes injury, damage or death to the

participant;

(2) Has actual knowledge or reasonably should have known of a dangerous condition on

the land, facilities or equipment used in the activity or the dangerous propensity of a

particular animal used in the activity and does not make the danger known to the

participant, and the danger proximately causes injury, damage or death to the participant;

(3) Fails to train, or improperly or inadequately trains, employees who are actively

involved in agritourism activities, and an act or omission of the employee proximately

causes injury, damage or death to the participant;

(4) Intentionally injures the participant; or

(5) Commits any other act, error or omission that constitutes willful or wanton

misconduct, gross negligence or criminal conduct.

Tenn. Code Ann. § 43-39-102(b).

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participant resulting solely from the inherent risks of agritourism activities,

as long as the warning contained in § 43-39-103(b) is posted as required;

and

(2) No participant or participant’s representative shall maintain an action

against or recover from an agritourism professional for injury, loss, damage

or death of the participant resulting exclusively from any of the inherent

risks of agritourism activities.

Tenn. Code Ann. § 43-39-102(a).

This language demonstrates a legislative intent to limit the liability of agritourism

professionals for injuries resulting “solely” from the inherent risks of agritourism

activities2 if the appropriate warnings are posted. See Shore v. Maple Lane Farms, LLC,

411 S.W.3d 405, 429 (Tenn. 2013) (“The purpose of the agritourism statute[], on the

other hand, is to limit the liability of ‘agritourism professionals’ for injuries to persons

who come to their property to enjoy corn mazes, hayrides, pick-your-own pumpkin and

strawberry patches, and other agritourism activities.”). Unlike the policy declaration

apparent on the face of the Dram Shop Act, the agritourism statute does not make

agritourism professionals immune from fault as well as liability. And the additional

language restricting a participant’s ability to “maintain a cause of action” does not change

our conclusion. A participant’s ability to bring suit affects whether the participant may

recover damages, not whether a jury can assess fault. See Carroll, 29 S.W.3d at 17 (“A

plaintiff’s ability to bring a cause of action was only important—to the extent that it

mattered at all in the Court’s analysis—in determining whether the plaintiff could recover

damages, not whether a jury could apportion fault to a nonparty.”).

We conclude that nothing in the agritourism statute evidences a legislative intent

to preclude allocation of fault to an agritourism professional. Our supreme court has

“been careful to craft a system of comparative fault which remains true to the goal of

linking liability to fault.” Biscan, 160 S.W.3d at 485 (Drowota, J., dissenting in part).

Where, as here, there are multiple participants in an injury-causing event, the jury is

entitled to hear all the relevant evidence and allocate fault to those participants that

caused or contributed to the plaintiff’s injury. See Carroll, 29 S.W.3d at 19. “Otherwise,

liability might be imposed disproportionately to fault, a result plainly inconsistent with

our comparative fault scheme.” Dotson, 29 S.W.3d at 29.

2

The statute defines the “[i]nherent risks of agritourism activity” as “those dangers, conditions or

hazards that are an integral part of an agritourism activity, including, but not limited to,” surface

conditions. Tenn. Code Ann. § 43-39-101(3)(A)(i).

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III.

Because the agritourism statute provides immunity from liability, not immunity

from fault, the trial court did not err in allowing the jury to allocate fault to Green Door

Gourmet. Thus, the trial court did not err in granting the motion in limine or declining to

use the plaintiff’s special verdict form. We affirm the trial court’s decision in all

respects.

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W. NEAL MCBRAYER, JUDGE

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