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Newcomb v. State

Court of Appeals of Tennessee, Nashville

June 26, 2015


Assigned on Briefs March 11, 2015.

Appeal from the Tennessee Claims Commission No. T20111727 Commissioner Robert N. Hibbett, TN. Claims Commission (Middle Division), Judge.

Tonya Newcomb, Linden, Tennessee, Pro se.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, and Joseph Ahillen, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.



On June 9, 2010, Tonya Newcomb ("Plaintiff) fell down a flight of stairs in front of the James K. Polk building. This building is part of the Andrew Jackson building complex, all of which is owned by the State of Tennessee. Plaintiff sustained injuries and was taken to the hospital. On June 2, 2011, she filed a claim with the Claims Commission, alleging that the stairs were a dangerous condition because the handrail was too low for her to reach and because the steps were not covered in non-skid material.[1]

At trial, Plaintiff testified that she was walking with her two-year-old daughter on the day of her injury. It was raining, and a security guard at the James K. Polk building motioned for Plaintiff and her daughter to come inside. While descending the steps leading to an entrance of the building, Plaintiff slipped and fell. Plaintiff testified that she reached out for the handrail, but it was out of reach. She stated that she could have caught the handrail if it had been "up one more step." Plaintiff also introduced into evidence photographs of repairs made to the stairs after her fall.

The State called two witnesses. The first witness, Patti Hoover, was the head facilities administrator for the Andrew Jackson complex at the time of Plaintiffs injury. The second witness, Ben Sanderfur, was a member of Ms. Hoover's staff Both witnesses testified that their job duties included ensuring that the steps in question were properly maintained. According to both witnesses, the steps in question were one of the main entrances to the James K. Polk building, and any problems would have been quickly noticed and corrected.

Neither witness had personal knowledge of incidents that occurred on the steps in question prior to Plaintiff's injury. Ms. Hoover also testified that she had reviewed a database used for reporting incidents that occurred on the property and that this database did not contain records of any incidents involving the steps in question prior to Plaintiff's injury.

In April 2014, the Commissioner issued a written order stating his findings of fact and conclusions of law. The Commissioner found that Plaintiff was a credible witness and that she had sustained injuries as a result of her fall. The Commissioner also found that both of the state's witnesses were credible. The Commissioner concluded that Plaintiff had failed to prove that the steps and handrail were a dangerous condition or that, assuming they were dangerous, the State knew or should have known that they constituted a dangerous condition. The Commissioner noted that Plaintiff had attempted to prove that the State had notice of a dangerous condition by introducing photographs of repairs conducted after her injury. However, he concluded that these photographs could not be used as evidence to prove liability according to Rule 407 of the Tennessee Rules of Evidence, which states that evidence of subsequent remedial measures is inadmissible "to prove strict liability, negligence, or culpable conduct[.]"[2]

The Commissioner dismissed Plaintiff's claims, and Plaintiff appealed. We affirm.

Standard of Review

When decisions of an individual claims commissioner or the entire Claims Commission are appealed to this court, they are governed by the Tennessee Rules of Appellate Procedure. Tenn. Code Ann. § 9-8-403(a)(1). Because the commissioner hears cases without a jury, this court reviews the commissioner's findings using the standard outlined in Tenn. R. App. P. 13(d). See Bowman v. State, 206 S.W.3d 467, 472 (Tenn. Ct. App. 2006). We will review the commissioner's findings of fact de novo with a presumption that they are correct unless the ...

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