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Wimmer v. Chattanooga-Hamilton County Hospital Authority

Court of Appeals of Tennessee, Knoxville

January 26, 2018


          Session October 18, 2017

          Appeal from the Circuit Court for Hamilton County No. 14C507 W. Neil Thomas, III, Judge

         Linda 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.

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

          Marvin B. Berke and Timothy J. Crosby, Chattanooga, Tennessee, for the appellant, Linda Wimmer.

          Joshua A. Powers and Hanna L. Burnett, Chattanooga, Tennessee, for the appellee, Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System.

          D. 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.




         The 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.

         At 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."

         Although 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 resided.

         Plaintiff 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.

         The 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.

         Plaintiff 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 she stated:
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.

         She further stated:

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 - - left.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         When 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 couple minutes.
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 right?"
I said, "No. I can't feel anything from my neck down."
He says, "I can't stay with you, but I'll go get help."
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 back."
And he ran off again. In a little while, a lady came down. And he said, "I'll get someone to stay with you."
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.

         Plaintiff 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 it was.

         Plaintiff 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.

         The parties stipulated that Plaintiff had medical expenses of $125, 000.

         Clarkson 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.

         Mr. 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 ...

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