Session October 18, 2017
from the Circuit Court for Hamilton County No. 14C507 W. Neil
Thomas, III, Judge
Wimmer ("Plaintiff") sued Chattanooga-Hamilton
County Hospital Authority d/b/a Erlanger Health System
("Erlanger") with regard to an incident in which
Plaintiff was hit with an interior door and seriously
injured. After a trial without a jury, the Circuit Court for
Hamilton County ("the Trial Court") entered its
Memorandum and Judgment finding and holding, inter
alia, there was no evidence that the location of the
door constituted a defective design and no evidence that the
door itself was defective, and that even if Erlanger had a
duty to post a sign or put a glass window in the door, there
was no evidence of causation. The Trial Court entered
judgment in favor of Erlanger. Plaintiff appeals to this
Court. We find and hold that Erlanger was immune from suit
pursuant to Tenn. Code Ann. § 29-20-101, et
seq., that Plaintiff failed to prove that said immunity
was removed, and, in the alternative, that Plaintiff failed
to prove causation. We, therefore, affirm the Trial
Court's judgment in favor of Erlanger.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed Case Remanded
B. Berke and Timothy J. Crosby, Chattanooga, Tennessee, for
the appellant, Linda Wimmer.
A. Powers and Hanna L. Burnett, Chattanooga, Tennessee, for
the appellee, Chattanooga-Hamilton County Hospital Authority
d/b/a Erlanger Health System.
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which THOMAS R. FRIERSON, II, J., joined, and JOHN W.
MCCLARTY, J., filed a separate dissenting opinion.
MICHAEL SWINEY, CHIEF JUDGE
accident giving rise to this suit ("the Accident")
occurred in October of 2013. Plaintiff was at Erlanger for a
doctor's appointment. After her appointment, Plaintiff
stood in a lobby area while she waited for her ride. While
waiting, Plaintiff was hit and knocked to the ground when an
interior door ("the Door"), which opened outward
into the lobby area, was opened by an unknown person.
Plaintiff filed suit against Erlanger in April of 2014, and
the case proceeded to a bench trial in January of 2017.
trial, Plaintiff testified that she was 71 years old at the
time of the Accident and lived in a senior living facility.
Prior to the Accident, she was able to walk and drive.
Plaintiff stated that she used a cane when "the ground
was uneven or whatever, rough terrain, it helped."
Plaintiff testified that she saw several doctors at Erlanger
for care and treatment including Dr. Ingram, an orthopedic
surgeon. On the day of the Accident, Plaintiff was at
Erlanger to see Dr. Ingram, whom she had been seeing since
April of that year for care and treatment of a fractured arm.
Plaintiff stated that on that day, she "felt like [she]
was getting better. [She] felt like [her] arm was healing. It
was almost healed. It was getting better."
Plaintiff was capable of driving, she did not drive to her
appointment on the day of the Accident. Instead, she took the
senior living van from the senior living facility where she
entered the building that day through the same lobby where
the Accident later occurred. After her appointment with Dr.
Ingram, Plaintiff returned to this lobby to wait for her ride
on the senior living van. Plaintiff testified that she left
Dr. Ingram's office just before 11 a.m.
lobby where Plaintiff waited has outside automatic glass
doors and a vestibule area. Plaintiff had waited in the
vestibule in the past "in the summer when it was
warm." She agreed when asked that in the past she had
stood by the brick wall in the vestibule and was out of the
way of the path of foot traffic. Plaintiff, however, did not
wait in the vestibule area on the day of the Accident.
Instead, she waited inside the building. She stated:
Another thing is, if you waited there [in the vestibule] and
it was chilly, the doors kept opening for people coming in
and out. And the cold air would blow in on you. That's
why that day in October, when it was chilly, I was on the
inside back behind the . . . I was inside the building.
stated: "The vestibule temperature would have been about
20 degrees lower than being in the building."
Plaintiff was asked if she ever had seen the Door open, and
No. I didn't even realize there was a door there at that
time because I wasn't paying any attention to the fact
that there might be a door there, because I didn't think
about a fire door or anything like that. I was thinking about
what I was going to do when I was better. . . . I was just
thinking at that time what I was going to do, if I were
getting better, what I could do.
I was getting better, and I was planning on going to see my
sister out in Nevada, because she's 78. I'm 74. At
the time, we were younger, but my sister's also very ill.
She has a lung disorder. And that may be fatal. And I wanted
to see her before we both died, you know, because we're
the only two family members - - immediately family members -
testified that there was no sign telling her not to stand
where she was standing, and that she did not notice a window
in the Door. There were no places to sit by the Door.
Plaintiff admitted that the Door is a wooden door with a
black metal frame surrounded by red brick. She stated,
however, that she did not see the Door until after she was
hit. Plaintiff admitted when asked that she did not know the
Door was there until after she was hit.
was asked if during her past visits to Erlanger she had seen
other people standing in the area where she had been standing
when the Accident occurred, and she stated: "Yes. People
stood there." Plaintiff stated:
It was typical to wait there, not only myself, but there
would be other people waiting at times. It wasn't real
crowded up together, but there would be - - one or two other
people would be standing here, waiting for their rides,
because our van wasn't the only one that came up there to
pick people up.
was asked why she didn't sit in an available chair away
from the Door, and she stated:
I could, but I couldn't have seen [the van driver] until
he pulled up right in front of the doors, which upset him,
because he - - people start blowing their horns at him and
cursing him and stuff like that. He had incidents that
happened in front of that door when he had to pull up and
wait for you. He didn't like it. . . . Well, he
couldn't come in the building and say anything. He
couldn't leave the van. He'd expect you to see him,
and that's why I was standing. . . . And he was coming
from the left direction. So I had to see from the left up the
driveway, to see him turning into the driveway. And I would
start out the door, because he had to put the lift down to
put me in the van. You couldn't get in the door of the
van. You had to go in the back end of it through a lift.
asked if she could have seen the senior living van if she had
been sitting in a seat away from the Door, Plaintiff stated:
I would say I could probably see out the front door, but you
couldn't see the curb where he had to turn in the
driveway. But you could probably see a small portion, a
portion of the driveway. Maybe. I'd have to - - my
walking is very slow. I'm supposed to get around. By the
time I got out there, he'd have to be sitting there for a
Plaintiff described the Accident, stating:
I was knocked about halfway across the foyer there and
finally fell on my back. And when I fell, I couldn't feel
anything from my neck down. I was afraid that I'd been
paralyzed, broken my back or something.
And the man was right behind me, and he had on scrubs and he
had on the bandana. And I assumed he was an employee of the
hospital since he was dressed in scrubs and they were blue.
He bent over and [sic] me and he said, "Are you all
I said, "No. I can't feel anything from my neck
He says, "I can't stay with you, but I'll go get
And he ran off, going in the direction down the hall. . . .
And I lay there for about 15 minutes more and he came running
back. He said, "I couldn't find anybody. I'll be
And he ran off again. In a little while, a lady came down.
And he said, "I'll get someone to stay with
A lady came down. I assume she was an office worker. And she
said, "I'm going to stay with you until the
ambulance comes." So she did. She stayed there and
talked to me till the ambulance came.
stated that she fractured her left hip. After the Accident,
Plaintiff was unable to return to the senior living center,
but she instead had to go to the Life Care Center. Plaintiff
had surgery in October and in November and also has had
physical therapy. She stated that her pain "[n]ever
ends." Plaintiff testified that she has pain in her
shoulders, back, and neck. She stated:
I can barely walk. And I go through these periods where it
seems like I can walk better, and then one morning I'll
wake up and can hardly walk. This will go on for weeks, and
then I can walk better, and then it will go back to the way
testified that she now uses a walker. She stated:
Both legs give me trouble now, because one leg is shorter
than the other. And one arm is - - if I can put my jacket
down, if you can see, my arms aren't the same length
anymore. This one is shorter than this one.
parties stipulated that Plaintiff had medical expenses of
Lee Mason, a practicing engineer, testified for Plaintiff.
Mr. Mason testified that he was 75 years old and had been
practicing engineering for 47 years. Mr. Mason stated that he
has owned his own business for approximately the last 30
years. Mr. Mason is licensed in Tennessee. He stated that he
also is licensed in two other states and previously was
licensed in six states, but did not renew all of his licenses
because he wasn't doing business in those states anymore.
Mason testified that he visited the site of the Accident and
inspected the Door several times. He stated:
Well, it looked just like any other door, you know, but
it's not just any other door. And I know that. It's
the fire escape. In this case it's the fire escape. It
could be any kind ...