Opinion
No. E2021-01486-COA-R3-CV
01-30-2023
David CALDWELL et al. v. RUBY FALLS, LLC
Richard A. Schulman and Lance W. Pope, Chattanooga, Tennessee, for the appellants, David Caldwell and Nancy Caldwell. Gary A. Cooper and Kelsey E. Keef, Chattanooga, Tennessee, for the appellee, Ruby Falls, LLC.
Richard A. Schulman and Lance W. Pope, Chattanooga, Tennessee, for the appellants, David Caldwell and Nancy Caldwell.
Gary A. Cooper and Kelsey E. Keef, Chattanooga, Tennessee, for the appellee, Ruby Falls, LLC.
Thomas R. Frierson, II, J., delivered the opinion of the court, in which John W. McClarty and Kristi M. Davis, JJ., joined.
OPINION
Thomas R. Frierson, II, J. Following a jury trial in this premises liability action involving a patron's fall while on a cavern tour operated by the defendant, the trial court entered a judgment in favor of the defendant upon the jury's verdict. The jury found that although the defendant had been negligent in violating a common law duty to use ordinary care to avoid injury to a visitor on its premises, the defendant's negligence had not been a legal and factual cause of the damages claimed by the plaintiffs. The jury also found that the building code adopted by the City of Chattanooga, where the cavern is located, did not apply to the area where the fall occurred. The court subsequently denied the plaintiffs’ motion for a new trial, approving the jury's verdict. The plaintiffs have appealed. Discerning no reversible error, we affirm.
I. Factual and Procedural Background
The plaintiffs, David Caldwell and Nancy Caldwell, filed a complaint in the Hamilton County Circuit Court ("trial court") on January 30, 2019, averring that Mr. Caldwell had been severely injured in an accident occurring on July 23, 2018, in the cavern at Ruby Falls ("the cavern"), an attraction operated by the defendant, Ruby Falls, LLC ("Ruby Falls"). According to Ruby Falls’ description on appeal, the "main activity" at the attraction is "a tour of underground caverns which lead to a large underground waterfall." It is undisputed that when entering and exiting tour groups pass each other in the cavern, they sometimes have to do so on narrow, winding walkways. It is also undisputed that while walking toward the cavern's exit on the day of the accident, Mr. Caldwell fell from a walkway and suffered fractures to his right shoulder. Although Ms. Caldwell was walking behind Mr. Caldwell, she testified at trial that people were between them and that she did not witness the fall.
In their complaint, the Caldwells alleged that Mr. Caldwell's injuries were caused by Ruby Falls’ acts of negligence, including (1) failure to protect invitees; (2) failure to maintain the cavern in a safe condition; (3) provision of a dangerous method of ingress and egress upon which "it was foreseeable that people could be injured because of its dark areas with narrow walkways and requiring groups to pass each other when it was not safe to do so"; (4) improper training of tour guides; and (5) the Caldwells’ tour guide's actions, as an agent or employee of Ruby Falls, in directing groups to pass each other in a dangerous way and in allowing members of his group to become separated. The Caldwells further alleged that as a direct and proximate result of Ruby Falls’ negligence, Mr. Caldwell "suffered serious and disabling injuries to his right arm and upper extremity," "incurred hospital and medical bills, lost earnings and earning capacity and suffered much unnecessary pains, suffering and mental anguish and a permanent impairment." Demanding a jury trial, the Caldwells initially requested $450,000.00 in damages for Mr. Caldwell's injuries, as well as $50,000.00 for a loss of consortium claim on behalf of Ms. Caldwell.
Ruby Falls filed an answer on March 15, 2019, denying any negligence while admitting that Mr. Caldwell had reported falling while he was moving toward the cavern exit on the day of the accident. Invoking the doctrine of comparative fault, Ruby Falls alleged that Mr. Caldwell "should have been aware of any issues respecting the narrowness of the pathways over which he was travelling and of risks associated with walking within a cave and that he failed to exercise reasonable care for his own safety ...." Ruby Falls also averred that the Caldwells’ admission tickets included a warning that "Ruby Falls was not responsible for injuries in the cave or on the premises."
Ruby Falls filed a motion for summary judgment on May 12, 2020, attaching excerpts of depositions given by Mr. and Ms. Caldwell and asserting that no genuine issue of material fact precluded summary dismissal of all claims. The Caldwells filed a response opposing the motion on November 3, 2020, attaching excerpts of depositions given by Mr. Caldwell, three Ruby Falls employees, and a licensed civil engineer, all of whom subsequently testified at trial. Following a hearing, the trial court entered an order denying Ruby Falls’ motion for summary judgment on January 29, 2021, upon concluding that there were "material issues of fact precluding the entry of summary judgment." The court found "no dispute of material fact that [Mr. Caldwell] suffered an injury."
The trial court also entered an order on January 29, 2021, denying a motion filed by the Caldwells requesting that a sanction be imposed against Ruby Falls for spoliation of video footage from cavern surveillance cameras. Ruby Falls acknowledges that in response to the Caldwells’ discovery request, it could not produce cavern video footage from the day of the accident because that footage had been "overwritten" as part of a routine system of temporary storage and deletion. At the time of the accident, an incident report had been completed by Ruby Falls employee Carlin McRae, who was the front desk manager then on duty as well as Ruby Falls’ Human Resources Coordinator. According to Ms. McRae's report, which she had completed after speaking to the Caldwells on the day of the incident, Mr. Caldwell's fall had occurred near the "Leaning Tower" and "Myrtle the Turtle" features in the cavern. Ms. McRae testified twice via deposition, once in July 2020 and once in August 2021, and her second deposition testimony was presented by the Caldwells during trial. In her testimony presented at trial, Ms. McRae stated that when she was completing the incident report on the day of Mr. Caldwell's accident, Ms. Caldwell informed her that she thought the fall had occurred near Myrtle the Turtle. Ms. McRae testified that after completing the report, she reviewed video footage from the camera that would have included a view of Myrtle the Turtle and did not see a fall or disturbance.
During trial, Kara Van Brunt, who had been the Senior Director of Operations at Ruby Falls at the time of Mr. Caldwell's accident and was the Executive Director at the time of trial, testified that she had not been present on the day of Mr. Caldwell's fall but that after speaking to Ms. McRae, she also reviewed video footage. Ms. Van Brunt reported that she reviewed footage from the area near Myrtle the Turtle and a nearby area named the Leaning Tower. She related that when she "did not see anything," she "just assumed it happened off camera," adding that "[t]here was a pretty big section off camera right around Myrtle the Turtle." Ms. Van Brunt and Ms. McRae each testified that Ruby Falls’ video footage was stored for a short time, two weeks according to Ms. Van Brunt, but then "roll[ed] over."
In October of 2019, the Caldwells, their counsel, and J. Tate Geren, a licensed civil engineer employed as the Caldwells’ expert, visited Ruby Falls to walk through the area where Mr. Caldwell's fall occurred. Ms. Van Brunt testified that it was during the October 2019 visit when she learned for the first time that Mr. Caldwell was identifying an area of the cavern known as the Mirror Pool as the location of his fall. Ms. McRae testified that she had not learned until July 7, 2020, the day before giving her first deposition testimony, that Mr. Caldwell was stating that the fall happened near the Mirror Pool. Ms. McRae and Ms. Van Brunt each acknowledged that they had not reviewed footage of the Mirror Pool area before the footage was overwritten. Although the trial court denied the Caldwells’ request for spoliation sanctions related to the destroyed video footage, the court subsequently granted, with some modification, a motion filed by the Caldwells requesting a jury instruction setting forth elements to be considered in deciding whether missing evidence would have been adverse to a party. See 8 Tenn. Prac. Pattern Jury Instr. T.P.I.-Civil 2.04 (2022 ed.).
On February 12, 2021, the Caldwells filed a motion to amend their complaint, seeking to add a claim for additional medical expenses incurred by Mr. Caldwell for shoulder replacement surgery and physical therapy he had undergone since the filing of the original complaint. The trial court granted the motion to amend in an order entered on March 23, 2021, and the Caldwells’ requested compensatory damages increased to $975,000.00 for Mr. Caldwell's injuries and $150,000.00 for Ms. Caldwell's loss of consortium claim. Ruby Falls filed an answer to the amended complaint, incorporating its initial answer and demanding a jury trial. Upon an oral motion presented during a pretrial conference, the trial court subsequently allowed the Caldwells to file a second amended complaint on July 8, 2021, adding an allegation that Ruby Falls had violated the 2012 International Building Code ("IBC"), which previously had been adopted by the City of Chattanooga via an ordinance. Ruby Falls filed an answer to the second amended complaint, inter alia , arguing that the IBC was "not properly applicable to the interior of the cavern."
During a July 7, 2021 pretrial conference, the trial court entertained various motions in limine filed by the parties, including a motion filed by Ruby Falls requesting exclusion of evidence related to the IBC. The trial court entered two orders on July 8 and 9, 2021, directing that the parties’ respective expert witnesses would testify before the court outside the presence of the jury concerning the applicability of the Code. Following an evidentiary hearing concerning the applicability of the IBC conducted on July 15, 2021, and various motions regarding expert witness testimony concerning the IBC, the trial court ultimately entered an order on September 17, 2021, finding that the jury should decide the question of whether the IBC applied to the cavern. The court further stated:
The Court will instruct the jury on what code sections would be applicable if they determine the Ruby Falls cavern is a structure or building thereby making the 2012 International Building Code applicable. However, the jury will determine whether the cavern is a building, a structure or both.
During the pretrial conference, the trial court also entertained a motion filed by Ruby Falls requesting exclusion of evidence regarding accidents involving prior injuries similar to Mr. Caldwell's injuries. In an agreed order entered on July 8, 2021, the trial court stated in pertinent part: "Based on the agreement of counsel and for good cause shown, the Court will exclude any evidence of, or arguments based on, injuries similar to Mr. Caldwell's injuries sustained by any other party." Following further hearing, the court entered an order on July 23, 2021, granting the Caldwells’ motion in limine regarding comparative fault and directing that the jury "may not attribute fault to any party other than [Mr. Caldwell], [Ruby Falls], or both."
In August 2021, Ruby Falls produced for the first time through discovery an October 2015 incident report, completed by Ms. McRae, documenting a patron's fall and resultant injury occurring near the Mirror Pool ("2015 Incident Report"). Ms. Van Brunt testified at trial that the 2015 Incident Report had not been produced earlier because at the time that Ruby Falls initially responded to a request for production of documents, Ms. Van Brunt had not been notified of Mr. Caldwell's statement that his fall occurred near the Mirror Pool. During trial, the Caldwells sought to admit the 2015 Incident Report through their adverse direct examination of Ms. Van Brunt. Upon Ruby Falls’ objection to admission of the entire report, the trial court allowed a redacted version to be admitted with questioning of Ms. Van Brunt related to the report limited to whether the 2015 incident happened, where it happened, and what direction the patron who fell was traveling in the cavern.
The trial court conducted a jury trial over four days, spanning September 21 through 24, 2021. Mr. and Ms. Caldwell each testified and also presented testimony from their son and daughter-in-law, Joshua and Elizabeth ("Betsy") Caldwell, both of whom toured the cavern on the day of the accident but did not witness Mr. Caldwell's fall; Mr. Geren, accepted as an expert witness in the area of building and construction safety and IBC compliance, who opined that the IBC applied to the cavern; Richard Thomas, M.D., in his role as treating physician to Mr. Caldwell and as an expert witness in orthopedic surgery and orthopedic traumatology; and Jerry Smith, M.D., a specialist in physical medicine and rehabilitation who evaluated Mr. Caldwell's level of disability as a result of his shoulder injury. The Caldwells also called several Ruby Falls employees as adverse witnesses, including Ms. Van Brunt; Ms. McRae; Robert White, Properties and Facilities Manager; and Russell Snyder, who had been the Caldwells’ tour guide on the day of the accident and had been hired one week before. Ruby Falls presented testimony from Timothy Dodd, a registered professional engineer, accepted as an expert witness in civil engineering, and Dallas Y. Rucker, Jr., Director of the Land Development Office for the City of Chattanooga, both of whom opined that the IBC did not apply to the cavern because it was a "natural feature," as Mr. Todd termed it, or a "natural occurrence," as Mr. Rucker described it.
Other than Mr. Caldwell, none of the witnesses observed Mr. Caldwell's fall. Mr. Caldwell testified at trial that the accident occurred as he was approaching the Mirror Pool. He described the accident as follows:
We were coming up to the Mirror Pool and we were walking. And there were people on the right-hand side, and they had their backs to the wall and against the railing. And as we were going along, I was walking along. There were people in front of me. And then as we were walking along, I felt somebody – the only way to say it is I felt somebody stick out their foot and hit me
in the shin about maybe two or three inches, you know, about a third of the way up. And when that happened, I started to fall forward.
I had a camera in my right hand – in my left hand. So that started sliding out like this, and my hand started to go down. And when it started to go down, it hit the rocks, the rock surface. And when it did, I heard a snapping/cracking sound, and I – and I immediately – it just was excruciating pain.
Following deliberation, the jury returned a verdict in favor of Ruby Falls. In answer to the question, "Do you find Defendant Ruby Falls, LLC negligent because of [a] violation of a common-law duty to use ordinary care to avoid injury to a visitor on its premises," the jury answered, "Yes." However, in response to the follow-up question, "do you find such negligence was a legal and factual cause of the damages the plaintiffs claim," the jury answered, "No." In answer to the questions of whether "the area of Ruby Falls, LLC where the fall occurred" was "a building" or "a structure" "within the meaning of the 2012 International Building Code," the jury answered, "No." On September 29, 2021, the trial court entered a judgment order dismissing the Caldwells’ claims, attaching the jury's verdict form as an exhibit.
The Caldwells filed a timely motion for new trial on October 28, 2021, pursuant to Tennessee Rule of Civil Procedure 59.07, essentially raising the same issues now raised on appeal and attaching multiple exhibits. Ruby Falls filed a response opposing the motion. Following a hearing, the trial court denied the Caldwells’ motion for new trial in an order entered on November 29, 2021, approving the jury's verdict upon finding that the evidence did not preponderate against it and that "the weight of the evidence support[ed] the jury's verdict." Upon Ruby Falls’ motion, the trial court also entered an order on November 22, 2021, awarding a total of $12,539.80 in discretionary costs to Ruby Falls pursuant to Tennessee Rule of Civil Procedure 54.04. The Caldwells timely appealed.
The award of discretionary costs is not at issue on appeal.
II. Issues Presented
The Caldwells present five issues on appeal, which we have restated as follows:
1. Whether the trial court erred by denying the Caldwells’ request to present rebuttal evidence regarding whether the cavern had a set maximum occupancy capacity.
2. Whether the trial court erred by denying the Caldwells’ request to present additional evidence concerning a prior accident that had occurred in the cavern.
3. Whether the trial court erred by denying the Caldwells’ request for a spoliation sanction against Ruby Falls for destroying surveillance camera footage.
4. Whether the trial court, in its role as the thirteenth juror, erred by declining to find that the evidence preponderated against the jury's causation determination.
5. Whether the trial court, in its role as the thirteenth juror, erred by declining to find that the evidence preponderated against the jury's determination that the IBC did not apply to the cavern.
III. Standard of Review
The Caldwells have raised issues challenging whether the evidence preponderated in favor of the jury's verdict. As our Supreme Court has elucidated regarding review of a jury's verdict:
Where a party invokes the right to a jury trial, our constitution requires "that the jury be allowed to determine all disputed issues of fact." Spence v. Allstate Ins. Co. , 883 S.W.2d 586, 594 (Tenn. 1994). The questions of disputed fact to be resolved by the jury include the type and amount of any damages awarded to the plaintiff.
However, "a verdict of a jury is subject to the supervision of the trial court." Foster v. Amcon Int'l, Inc. , 621 S.W.2d 142, 144 (Tenn. 1981). "No verdict is valid until it is approved by the trial court judge." Davidson v. Lindsey , 104 S.W.3d 483, 488 (Tenn. 2003) (citing Cumberland Tel. & Tel. Co. v. Smithwick , 112 Tenn. 463, 79 S.W. 803, 805 (1904) ). In determining whether to approve the jury's verdict, the trial judge acts as a "thirteenth juror":
"The reasons given for the rule are, in substance, that the circuit judge hears the testimony, just as the jury does, sees the witnesses, and observes their demeanor upon the witness stand; that, by his training and experience in the weighing of testimony, and the application of legal rules thereto, he is especially qualified for the correction of any errors into which the jury by inexperience may have fallen, whereby they have failed, in their verdict, to reach the justice and right of the case, under the testimony and the charge of the court; that, in our system, this is one of the functions the circuit judge possesses and should exercise—as it were, that of a thirteenth juror. So it is said that he must be satisfied, as well as the jury; that it is his duty to weigh the evidence; and, if he is dissatisfied with the verdict of the jury, he should set it aside."
Davidson , 104 S.W.3d at 488 (quoting Smithwick , 79 S.W. at 804 ). "The purpose of the thirteenth juror rule is to be a ‘safeguard ... against a miscarriage of justice by the jury.’ " State v. Moats , 906 S.W.2d 431, 434 (Tenn. 1995) (quoting State v. Johnson , 692 S.W.2d 412, 415 (Tenn. 1985) (Drowota, J., dissenting)).
The trial judge must be independently satisfied with the verdict; if the trial judge is dissatisfied with the verdict, the verdict must be set aside. Holden v. Rannick , 682 S.W.2d 903, 905 (Tenn. 1984). In addressing a motion for a new trial, the trial court has such broad discretion that it is not bound to give reasons for its action in granting or denying a new trial based on the preponderance of the evidence. James E. Strates Shows, Inc. v. Jakobik , 554 S.W.2d 613, 615 (Tenn. 1977). Indeed, when a trial judge approves the verdict without comment, the appellate court will presume that the trial judge has adequately performed his function as the thirteenth juror. Holden , 682 S.W.2d at 905 (citing Cent. Truckaway Sys. v. Waltner , 36 Tenn. App. 202, 253 S.W.2d 985, 991 (1952) ).
Borne v. Celadon Trucking Servs., Inc. , 532 S.W.3d 274, 308 (Tenn. 2017) (other internal citations omitted). However, if the trial court judge states the reasoning for her decision, "this court looks to [the stated reasons] only for the purpose of determining whether [the judge] passed upon the issues, and was satisfied or dissatisfied with the verdict thereon." Holden v. Rannick , 682 S.W.2d 903, 905 (Tenn. 1984) (quoting Cumberland Tel. & Tel. Co. v. Smithwick , 112 Tenn. 463, 79 S.W. 803, 805 (1904) ). "If a trial judge, in discharging his duty as a thirteenth juror, makes comments which indicate that he has misconceived his duty as a thirteenth juror, an appellate court must reverse the trial judge and remand for a new trial." See Holden , 682 S.W.2d at 905.
The Caldwells have also raised evidentiary issues on appeal, which we review according to an abuse of discretion standard. See Biscan v. Brown , 160 S.W.3d 462, 468 (Tenn. 2005). As this Court has explained:
Trial courts are given wide latitude on evidentiary decisions and we will only overturn the trial court's decision upon a showing of an abuse of discretion. Danny L. Davis Contractors, Inc. v. Hobbs , 157 S.W.3d 414, 419 (Tenn. Ct. App. 2004). "The abuse of discretion standard requires us to consider: (1) whether the decision has a sufficient evidentiary foundation; (2) whether the trial court correctly identified and properly applied the appropriate legal principles; and (3) whether the decision is within the range of acceptable alternatives." Id. (citing Crowe v. First Am. Nat'l Bank , No. W2001-00800-COA-R3-CV, 2001 WL 1683710, at *9 (Tenn. Ct. App. Dec. 10, 2001) ).
McGarity v. Jerrolds , 429 S.W.3d 562, 566 (Tenn. Ct. App. 2013). Likewise, a trial court's decision to grant or deny a motion to impose sanctions is reviewed under an abuse of discretion standard. See Alexander v. Jackson Radiology Assocs., P.A. , 156 S.W.3d 11, 14 (Tenn. Ct. App. 2004) ("Appellate courts review a trial court's decision to impose sanctions and its determination of the appropriate sanction under an abuse of discretion standard.").
IV. Evidentiary Issues
A. Rebuttal Evidence
The Caldwells contend that the trial court erred by denying their request to present rebuttal evidence regarding whether the cavern had a set maximum occupancy capacity. Mr. Rucker, the Chattanooga Land Development Office Director, testified at the conclusion of Ruby Falls’ presentation of evidence. He had been subpoenaed to testify concerning the applicability of the IBC to the cavern and the Land Development Office's interpretation of the IBC. The trial court afforded jurors an opportunity, through the court, to ask questions of each witness testifying in person. When a juror asked, "Who determines maximum occupancy of the cavern component of Ruby Falls?" Mr. Rucker responded: "That would be up to the fire marshal's office." Noting that Ruby Falls’ Executive Director, Ms. Van Brunt, who had been called by the Caldwells during their case in chief, had testified that no maximum capacity had been set for the cavern, the Caldwells sought to call Ms. Van Brunt as a rebuttal witness. Following a sidebar conference, the trial court denied the request, finding that the requested testimony was not "appropriate rebuttal." On appeal, Ruby Falls maintains that the trial court properly precluded the Caldwells from calling Ms. Van Brunt as a rebuttal witness because Mr. Rucker's testimony had not contradicted earlier testimony and because the testimony that the Caldwells sought to rebut had been presented as part of their case in chief. Upon careful review, we determine that the trial court did not abuse its discretion in denying the Caldwells’ request to present rebuttal testimony.
"[R]ebuttal evidence is intended to ‘explain or controvert evidence produced by an adverse party.’ " Jernigan v. Paasche , 637 S.W.3d 746, 760 (Tenn. Ct. App. 2021) (quoting Godbee v. Dimick , 213 S.W.3d 865, 877 (Tenn. Ct. App. 2006) ). "Such evidence includes not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but also, evidence in denial of any affirmative fact which the answering party has endeavored to prove." Godbee v. Dimick , 213 S.W.3d 865, 877-78 (Tenn. Ct. App. 2006) (quoting State ex rel. Comm'r of Dep't of Transp. v. Williams , 828 S.W.2d 397, 401 (Tenn. Ct. App. 1991) ). As this Court has explained in pertinent part:
The fact that the plaintiff could have offered the same evidence as part of her case-in-chief does not preclude the evidence from being offered in rebuttal. Coates v. Thompson , 666 S.W.2d 69, 76 (Tenn. Ct. App. 1983). During the case-in-chief, the plaintiff is only required to present evidence on the issues for which she bears the burden of proof. Id.
Alumbaugh v. Wackenhut Corp. , No. M2016-01530-COA-R3-CV, 2018 WL 5733293, at *5 (Tenn. Ct. App. Oct. 31, 2018). However, as the Alumbaugh Court further explained:
A trial court may refuse to allow plaintiffs to present evidence in rebuttal that contradicts their own proof. See E. Tenn. Grading, Inc. v. Bank of Am., N.A. , 338 S.W.3d 506, 516 (Tenn. Ct. App. 2010) (concluding that rebuttal evidence offered by the plaintiff that contradicted testimony during plaintiff's case-in-chief was properly excluded); Watts v. Wilkerson , No. 03A01-9310-CV-00350, 1994 WL 85951, at *2 (Tenn. Ct. App. Mar. 9, 1994) (concluding the trial court did not abuse its discretion in excluding evidence offered in rebuttal that contradicted the plaintiff's case-in-chief).
Id.
In this case, the Caldwells assert that prior to trial, "two Ruby Falls employees gave contradictory testimony in their depositions about the cavern's capacity." One of these employees was Ms. Van Brunt, and the other was Mr. White, Ruby Falls’ Properties and Facilities Manager. During her deposition, when questioned regarding whether in July 2018 there had been a limit on the number of people who could be in the cavern at one time, Ms. Van Brunt responded: "There is a limit because we can only put so many people on the elevator at one time. So it is not as much a capacity – a total capacity of the cave as it is a total capacity of the elevator." In a subsequent response, Ruby Falls, in answer to a request for an admission concerning maximum capacity, reiterated Ms. Van Brunt's deposition testimony, maintaining that no maximum number of guests allowed in the cavern had been set and that capacity was only limited by the accommodations of the elevator into the cavern. In response to the Caldwells’ request for documents related to maximum capacity, Ruby Falls produced a copy of an elevator permit, current to the time of the response.
During his deposition, Mr. White, who had been employed by Ruby Falls in various roles for forty-two years, testified that the maximum capacity of the cavern was 300 people. When questioned regarding how he knew this or who set the maximum, however, Mr. White stated that he did not know the origin of the number and that he remembered it from the late 1980s or early 1990s. When questioned during trial regarding the 300-capacity figure he had stated in his deposition, Mr. White responded that the number was an "educated guess" and was a number he "remember[ed] from the mid ‘80s." He further testified that he remembered the number from "listening to some of the older people of what they thought they could do" rather than an "actual number" for the capacity. Mr. White acknowledged that setting an occupancy capacity for the cavern had never been part of his job description at Ruby Falls. During trial, the Caldwells presented a log of elevator trips during the timeframe that the Caldwells were in the cavern on the day of the accident and averred that it indicated a number of patrons in the cavern "max[ing] out at 516 people."
In requesting that they be allowed to present rebuttal evidence, the Caldwells asked to present discovery responses and to call Ms. Van Brunt to testify again. The Caldwells asserted that Mr. Rucker's testimony that it would be the fire marshal's responsibility to set a maximum capacity in the cavern contradicted the evidence the jury had heard regarding maximum occupancy capacity up to that point. During a sidebar conference, the trial court questioned whether the Caldwells had pled a violation of an ordinance or code setting a maximum capacity in the cavern. The Caldwells responded that the allegation in their amended complaint that Mr. Caldwell fell in part because Ruby Falls had "too many people passing each other in opposite directions" alleged an unsafe number of people in the cavern. The following exchange ensued in pertinent part:
The Caldwells’ Counsel: Mr. Rucker testified that the fire marshal determines the maximum occupancy for the cavern at Ruby Falls. I have a sworn interrogatory response from Ruby Falls’ executive director that says that there is no maximum number of guests in the cavern, according to Ruby Falls. That directly rebuts the testimony of the defense's expert witness. And I intend to submit that. I intend to call Ms. Van Brunt to establish that and submit that proof to the jury.
Trial Court: Because it's your position that the testimony that the fire marshal would set the maximum capacity means that it – I mean, he could set the maximum capacity at no capacity. I'm still not seeing where the rebuttal is.
The Caldwells’ Counsel: Your Honor, it's the plaintiffs’ position that this is direct rebuttal evidence to the defense expert's witness.
Trial Court: I understand that's your position, sir. I understand that. The Court does not find it's appropriate rebuttal. The Court also finds there is adequate evidence in this record that if the jury wants to find that it was too crowded in the falls that day and that had any causation effect, there is evidence from which they can do that.
The trial court ruled that the Caldwells could present an offer of proof as to the discovery responses but precluded them from calling Ms. Van Brunt for rebuttal testimony. The Caldwells ultimately presented no rebuttal.
In stating that it was "not seeing where the rebuttal" would be, the trial court appeared to be noting that Mr. Rucker's alleged contradiction of Ms. Van Brunt's testimony was not clear. On appeal, Ruby Falls posits that "[p]roof that the Fire Marshal did not set a maximum occupancy would in no way rebut [Mr.] Rucker's testimony that the Fire Marshall is the proper entity to set a maximum capacity." We agree with Ruby Falls on this point. Mr. Rucker did not testify that the fire marshal had set a maximum occupancy capacity for the cavern. When questioned regarding whose role it would be to set such a capacity, Mr. Rucker simply responded that it would be "up to the fire marshal's office." This was neither a contradiction nor a confirmation of Ms. Van Brunt's testimony that no maximum capacity had been set for the cavern. See, e.g. , E. Tenn. Grading, Inc. v. Bank of Am., N.A. , 338 S.W.3d 506, 516 (Tenn. Ct. App. 2010) (affirming the trial court's exclusion of " ‘rebuttal’ evidence" because the proffered rebuttal testimony did not "contradict[ ] or confirm[ ]" the testimony the appellant sought to rebut). Additionally, as Ruby Falls points out, the Caldwells were attempting to rebut proof presented during their case in chief. The Caldwells called Ms. Van Brunt as an adverse witness and questioned her regarding the maximum occupancy capacity in the cavern as they questioned other witnesses at trial regarding the cavern's capacity. Mr. White was also called as an adverse witness during the Caldwells’ case in chief, and the Caldwells’ counsel questioned him directly concerning his deposition testimony that he remembered the number 300 as the maximum capacity from his time working for Ruby Falls in the 1980s. As the Caldwells’ counsel noted during the sidebar with the trial court, the Caldwells had received no documents through discovery indicating that the fire marshal had ever set a maximum capacity for the cavern. The Caldwells’ counsel also stated that a public records request to the City of Chattanooga "for all documents related to any fire department inspection at Ruby Falls" had yielded only a response that the City had no such documents. The trial court denied the Caldwells’ oral request to, as the court framed it, "introduce a response [from Ruby Falls] that says we do not have the document you requested," noting that the City had apparently confirmed that no such document existed. The court stated that the introduction of such a response would lead the jury to infer that "something was inappropriate" in Ruby Falls’ response. See Godbee , 213 S.W.3d at 880 ("[T]he determinative question is not what the parties knew prior to trial, but rather what the jury knew from the in-court evidence presented to them.").
When requesting the rebuttal testimony, the Caldwells asserted that Mr. Rucker's testimony contradicted the evidence they had presented because it left the jury with an erroneous impression that a fire department inspection had been completed and a maximum capacity set in contradiction of Ms. Van Brunt's testimony. As explained above, our review of the transcript does not support this assertion of a contradiction. Moreover, by recalling Ms. Van Brunt to question her regarding whether the fire marshal had set a maximum capacity, the Caldwells would have been attempting to rebut the testimony they had elicited from Ms. Van Brunt, during their case in chief, stating that the cavern had no set maximum occupancy capacity. See Alumbaugh , 2018 WL 5733293, at *5 ("A trial court may refuse to allow plaintiffs to present evidence in rebuttal that contradicts their own proof."). Upon careful review, we conclude that the trial court did not abuse its discretion by denying the Caldwells’ request to present rebuttal evidence regarding the maximum occupancy capacity in the cavern.
B. Prior Accident
The Caldwells argue that the trial court erred by denying their request to present additional evidence concerning a prior accident, specifically a patron's fall near the Mirror Pool that had been documented in the 2015 Incident Report. The Caldwells aver that the trial court required them "to redact every detail from the incident report—including the fact that the injured patron ‘tripped and fell’—except the date, the location, and the direction that the patron was walking." The Caldwells suggest that the trial court prevented them from presenting proof that the 2015 accident was substantially similar to Mr. Caldwell's accident by barring them "from questioning Ruby Falls employees about any other details of the previous patron's fall." They assert that the jury's verdict was likely affected by the exclusion of the prior accident details. In response, Ruby Falls posits that the trial court did not abuse its discretion in limiting prior accident evidence because all relevant details remained in the redacted version of the 2015 Incident Report and because the employee the Caldwells sought to further question regarding the prior accident, Ms. Van Brunt, had no personal knowledge of the incident beyond what was in the report. Upon thorough review, we determine that the trial court did not abuse its discretion in directing the redaction of the 2015 Incident Report and limiting questioning regarding the prior accident.
On appeal, neither party addresses whether the agreement announced by the parties and approved by the trial court in its July 8, 2021 agreed order should have affected the Caldwells’ presentation of evidence related to the 2015 Incident Report, which apparently had been produced by Ruby Falls in discovery after entry of the agreed order. Although the parties had agreed that "any evidence of, or arguments based on, injuries similar to Mr. Caldwell's injuries sustained by any other party" would be excluded, we note that by not raising an objection based on the agreed order at trial, Ruby Falls waived any argument that the agreed order operated to exclude evidence regarding the 2015 Incident Report.
All relevant evidence is generally admissible. Tenn. R. Evid. 402. However, pursuant to Tennessee Rule of Evidence 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Specifically concerning the admissibility of evidence of prior accidents, this Court has explained:
Evidence of prior accidents is admissible to prove the existence of a dangerous condition or to prove the defendant's knowledge of the dangerous condition. John Gerber Co. v. Smith , 150 Tenn. 255, 266, 263 S.W. 974, 977 (1924) ; Winfree v. Coca-Cola Bottling Works , 19 Tenn. App. 144, 147, 83 S.W.2d 903, 905 (1935) ; Ellis v. Memphis Cotton Oil Co. , 3 Tenn. Civ. App. (Higgins) 642, 650 (1913). However, if the evidence of prior accidents is being offered to prove the existence of a particular hazard or danger, the party seeking to introduce the evidence must lay a foundation establishing substantial similarity between the present accident and the prior accident. John Gerber Co. v. Smith , 150 Tenn. at 268, 263 S.W. at 977. While all evidence relevant to the determination of disputed factual issues is generally admissible at trial, Tenn. R. Evid. 402, evidence concerning prior accidents that does not satisfy the substantial similarity requirement is inadmissible under Tenn. R. Evid. 403. Stroming v. Houston's Rest., Inc. , No. 01A01-9304-CV-00189, 1994 WL 658542, at *3 (Tenn. Ct. App. Nov. 23, 1994) (No Tenn. R. App. P. 11 application filed).
Duran v. Hyundai Motor Am., Inc. , 271 S.W.3d 178, 198 (Tenn. Ct. App. 2008). As to the "substantial similarity" requirement, this Court has elucidated:
The similarity requirement does not require that the circumstances of the accidents be identical in every particular. 1 McCormick on Evidence § 200, at 844 n.4 (John W. Strong ed., 4th Practitioner's ed. 1992) ("McCormick"); Lee R. Russ, Annotation, Modern Status of Rules as to Admissibility of Evidence of Prior Accidents or Injuries at Same Place , 21 A.L.R.4th 472 § 2[a] (1983). It does, however, require a showing that the condition or instrumentality that caused the earlier accidents was in substantially the same condition at the time of the earlier accidents as it was at the time of the present accident. John Gerber Co. v. Smith , 150 Tenn. at 268, 263 S.W. at 977 ; Martin v. Miller Bros. Co. , 26 Tenn. App. 110, 117, 168 S.W.2d 187, 189-90 (1942). It also requires that the condition or instrumentality shown to be
the common cause of the earlier accidents must also be the condition or instrumentality that caused the present accident. Turgeon v. Commonwealth Edison Co. [258 Ill.App.3d 234, 197 Ill.Dec. 194], 630 N.E.2d 1318, 1322 (Ill. App. Ct. 1994).
Stroming v. Houston's Rest., Inc. , No. 01A-01-9304-CV-00189, 1994 WL 658542, at *3 (Tenn. Ct. App. Nov. 23, 1994).
The redacted version of the 2015 Incident Report included the name of the Ruby Falls staff member completing the report (Ms. McRae), the incident date (October 26, 2015), the day of week (Monday), and the time (3:50 p.m.). The following questions and responses also remained in the redacted version:
If injury occurred in cave, give location in relation to nearest formation:outbound @ ramp near Mirror Pool
Were there any witnesses to the actual incident (employee or customer)?YES (her friend)
Comments and Observations:She was exiting/outbound
Without objection, all personal details regarding the injured party were redacted. No form questions were redacted, meaning that where answers were redacted, the prompts or question eliciting those answers were still visible. However, in accordance with the trial court's direction, the following prompts or questions had responses redacted:
Exact location of the injuryDescription and extent of injuryWas first aid administered?Was outside attention required?Did injured person indicate intention to seek medical attention on his/her own?If so, where and when?
As to the questions involving first aid and outside attention, it is clear from the redacted form that the space for answers to follow-up questions regarding who would have administered first aid and what agency would have responded with outside attention had not initially been completed. Additional material under "Comments and Observations" was redacted as was an attached witness statement. We note that the unredacted 2015 Incident Report is in the appellate record as an attachment to the Caldwells’ motion for new trial.
During a sidebar conference held upon the Caldwells’ attempt to question Ms. Van Brunt regarding the 2015 Incident Report and Ruby Falls’ counsel's objection to admission of the document, the trial court stated that it found part of the document to be clearly relevant "on notice ... that there was a fall in that area." See Duran , 271 S.W.3d at 198 ("Evidence of prior accidents is admissible to prove the existence of a dangerous condition or to prove the defendant's knowledge of the dangerous condition.") (emphasis added). Upon the trial court's question to the Caldwells’ counsel as to why the data in the document would be relevant, the following exchange ensued:
The Caldwells’ Counsel: Well, Your Honor, as you pointed out, it's obviously notice. And I have a redacted copy as well that doesn't include the name of the individual or the person that signed the witness statement.
I'd seek to introduce the redacted copy to demonstrate that the location of what was reported to Ruby Falls is the area of the Mirror Pool; and also that this guest that reported this fall to Ruby Falls three years before our client's injury was also headed outbound at the Mirror Pool slope.
Trial Court: Okay. So why do we have what kind of injury she suffered?
Ruby Falls’ Counsel: The circumstances of the fall and all of that.
Trial Court: Yeah.
The Caldwells’ Counsel: I think the circumstances of the fall, as reported to Ruby Falls, are relevant. I mean, I'm not seeking to introduce the location of her injury for the truth of the matter therein. I don't – that doesn't make any difference to me or I don't think that makes any difference to the proof in this case, but I do think that the location that's reported to Ruby Falls of the fall and the direction are relevant.
Trial Court: The location of the fall and the direction she was going are relevant. The rest of it is not. It's not relevant what her injuries were, what she complained of.
The Caldwells’ Counsel: Okay. So –
Other Caldwells’ Counsel: So you're asking us to redact that out of it?
Trial Court: Yes, sir. Yes, sir.
Ruby Falls’ Counsel: Do you need the document? I still object. I don't get to make that call.
Trial Court: Guys, this jury is going to be way over us. So let's question her about did it happen, where it happened, which direction the guest reported the guest was going. Redact the rest of it and mark it while the jury is at lunch.
Ruby Falls’ Counsel: Okay.
The Caldwells’ Counsel: So I can't show her a copy of the incident report through her testimony?
Trial Court: [The Caldwells’ Counsel], you can show her that incident report. You may ask her about the date, the location, the direction, period.
The Caldwells’ Counsel: I just can't show it to the jury? All right. I'm going to show her this one then.
During her testimony, Ms. Van Brunt reviewed the 2015 Incident Report and acknowledged that the report stated the fall had occurred as the patron was outbound in the Mirror Pool area.
In directing the redaction of the 2015 Incident Report, the trial court agreed with the Caldwells’ counsel concerning the relevance of the "location of the fall" and "the direction [the injured patron] was going," allowing those details to stay in the report. On appeal, Ruby Falls asserts that the Caldwells "got exactly what they wanted, testimony from a Ruby Falls employee that an incident occurred at the Mirror Pool in 2015, as a guest was traveling in the same [direction] that Mr. Caldwell had been walking on the day of his 2018 fall." The Caldwells assert, however, that the redaction of additional details regarding how the 2015 fall occurred, "including the fact that the injured patron ‘tripped and fell,’ " prevented them from demonstrating that the prior accident was substantially similar to Mr. Caldwell's fall. The Caldwells argue that because "the existence of a single handrail and steep slope of the walkway" were unchanged between the 2015 and 2018 incidents, the two patrons’ falls were substantially similar and that the Caldwells therefore should have been permitted to present additional evidence concerning the 2015 incident. Upon careful review of the unredacted 2015 Incident Report, we cannot agree that the two incidents were so similar as to render the trial court's limitation of evidence regarding the 2015 incident an abuse of discretion.
As this Court explained in Stroming , the similarity requirement for the admissibility of evidence regarding a prior accident requires both that (1) "the condition or instrumentality that caused the earlier accident[ ] was in substantially the same condition at the time of the earlier accident[ ] as it was at the time of the present accident" and (2) "the condition or instrumentality shown to be the common cause of the earlier accident[ ] must also be the condition or instrumentality that caused the present accident." Stroming , 1994 WL 658542, at *3. Stroming involved the plaintiff's fall in a "sunken area" in the pavement of a restaurant's parking lot. Id. at *1. The plaintiff sought to introduce two forms of evidence of prior accidents: (1) "a routine accident report stating that a patron had sprained her ankle ‘on a debet in [the] pavement’ " four months prior to the plaintiff's accident and (2) "testimony of one of the restaurant's former managers that an assistant manager had told him that two other patrons had fallen in the same area of the parking lot." Id. at *2. This Court affirmed the trial court's exclusion of evidence concerning these prior accidents, concluding:
We now turn to the evidence itself. It is too general to be admissible. It lacks sufficient detail concerning the circumstances surrounding the prior accidents to enable the trial court, or this court for that matter, to determine whether the sunken area in the parking lot was the common cause of the prior accidents. [The plaintiff] was unable to demonstrate any connection between the "debet in [the] pavement" involved in the June 1990 accident and the sunken area in the parking lot involved in this case. Similarly, the assistant manager's statement does not indicate whether these accidents occurred during the day or at night, whether the parking lot's surface was wet, dry, or icy, or even whether the sunken area caused the accidents. Accordingly, [the plaintiff] has provided no reason for overturning the trial court's decision to exclude her proffered evidence concerning prior accidents in the restaurant's parking lot.
Id. at *3.
Here, the Caldwells’ argument assumes that the consistent conditions—the pathway through the Mirror Pool and the single handrail—constituted the condition or instrumentality that caused both the 2015 accident and the instant accident. However, the record contains no indication that the redacted details of the 2015 Incident Report or further questioning of Ms. Van Brunt regarding the 2015 accident would have demonstrated a consistent condition that was a common cause of both patrons’ injuries. Most of the redacted details, including the remainder of the "Comments and Observations" and the majority of the witness statement, involved the type and extent of the 2015 patron's injury. These were details that the Caldwells’ counsel acknowledged during the sidebar did not "make[ ] any difference to the proof in this case." The unredacted 2015 report did include the description that the patron "tripped & fell passing by Mirror Pool" and the witness's statement that the patron "slipped on the floor, which caused her to fall." The witness did not specify the location of the fall, and the redacted portions of the report contained no additional details regarding location beyond what was in the unredacted description of "outbound @ ramp near Mirror Pool."
It is undisputed that in 2016, subsequent to the accident described in the 2015 Incident Report, Ruby Falls had installed a new single handrail in place of an old one in the Mirror Pool area. However, the presence of a single handrail, rather than one on each side, was consistent in the area in both 2015 and 2018.
In support of their argument regarding substantially similar conditions, the Caldwells rely on our Supreme Court's decision in John Gerber Co. v. Smith , 150 Tenn. 255, 263 S.W. 974 (1924). We find John Gerber to be factually distinguishable from the instant action. The married plaintiffs in John Gerber filed a negligence action against the defendant café operator, seeking "to recover for personal injuries sustained by [the wife] in slipping and falling while walking across a polished hardwood floor." John Gerber , 263 S.W. at 974. The trial court had permitted the plaintiffs to present proof that "other persons had slipped and fallen on the floor in question." Id. at 976. The Court of Civil Appeals determined that the evidence should not have been admitted, concluding that " ‘the proof fail[ed] to show that others slipped under the same conditions as those under which plaintiff slipped.’ " Id. The intermediate Court explained: "Plaintiff says she was merely walking, straight, that she did not turn her foot, that she did not wear high heels, and that she had no protruding nails. These are all material facts, not shown with reference to other parties who slipped on this floor." Id. The Tennessee Supreme Court reversed the intermediate Court's decision on this issue, affirming the trial court's decision to allow the evidence upon finding that "[i]t was only necessary [for the plaintiffs] to show that the condition of the floor was substantially the same when other persons slipped and fell upon it." Id. at 977. The High Court determined that requiring substantial similarity in the types of shoes worn and the walking manner of the injured persons was "hypercritical." Id.
In the instant action, the description of the patron's fall in the 2015 Incident Report and Mr. Caldwell's description of his fall in his testimony were dissimilar. In contrast to the 2015 witness statement that the patron "slipped on the floor," Mr. Caldwell testified that his accident occurred when he was "walking along" and "felt somebody stick out their foot and hit me in the shin about maybe two or three inches, you know, about a third of the way up," after which he "started to fall forward." Other than proof that both falls occurred in the Mirror Pool area, which was allowed into evidence by the trial court, the Caldwells have not offered any evidence that both falls occurred on the same segment of the pathway in the Mirror Pool area or that both falls were caused by the same condition of the pathway or inaccessibility of a handrail to the injured patrons.
Additionally, at trial, the Caldwells sought to introduce the 2015 Incident Report during Ms. Van Brunt's testimony. Although Ms. Van Brunt had produced the document on behalf of Ruby Falls in response to a discovery request, she testified that she had "no recollection of this incident at all." As Ruby Falls points out, the 2015 Incident Report was completed by Ms. McRae, whose August 24, 2021 deposition testimony was presented by the Caldwells during trial with the parties’ agreement that the deposition would stand in place of in-person testimony from Ms. McRae. That August 2021 deposition took place two weeks after Ruby Falls had provided the Caldwells with the 2015 Incident Report. However, the Caldwells’ counsel did not attempt to question Ms. McRae regarding the 2015 incident during her deposition. Although the Caldwells assert that the trial court barred them "from questioning Ruby Falls employees about any other details of the previous patron's fall," the record indicates that they only requested such questioning of Ms. Van Brunt, who had already testified that she had no memory of the incident.
Upon consideration of the above and particularly considering the "wide latitude on evidentiary decisions" afforded to the trial court, we conclude that the trial court's ruling to redact the 2015 Incident Report and limit testimony concerning the 2015 incident was well " ‘within the range of acceptable alternatives.’ " See McGarity , 429 S.W.3d at 566 (quoting Danny L. Davis Contractors v. Hobbs , 157 S.W.3d 414, 419 (Tenn. Ct. App. 2004) ). The trial court did not abuse its discretion in limiting evidence of the 2015 accident. C. Spoliation
The Caldwells contend that the trial court erred by denying their request for spoliation sanctions against Ruby Falls for the destruction of surveillance camera footage. According to the trial court's January 2021 order denying the motion, the Caldwells had requested the sanction of "[b]locking the presentation of evidence by the defense concerning the incident." Ruby Falls maintains that the trial court properly analyzed the facts according to the applicable factors and did not abuse its discretion in declining to impose sanctions. Upon thorough review of the record and applicable authorities, we discern no abuse of discretion in the trial court's denial of the Caldwells’ request for spoliation sanctions.
The Caldwells requested sanctions against Ruby Falls pursuant to Tennessee Rule of Civil Procedure 34A.02, which provides that "Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence." Tennessee Rule of Civil Procedure 37 authorizes a trial court to impose a range of sanctions for failure to obey a discovery order, including "dismissal of the action, rendering a judgment by default, limiting the introduction of certain claims or evidence, entering an order designating that certain facts shall be taken as established, and striking out pleadings or parts of pleadings." Tatham v. Bridgestone Americas Holding, Inc. , 473 S.W.3d 734, 739 (Tenn. 2015). "The decision to impose sanctions for the spoliation of evidence is within the wide discretion of the trial court." Id. at 746.
In its order denying the Caldwells’ motion for sanctions, the trial court considered factors set forth in Tatham , 473 S.W.3d at 746-47, wherein our Supreme Court, upon consideration of whether the intentional misconduct of a spoliating party must be a prerequisite for a trial court's imposition of spoliation sanctions, held the following:
In light of both Rule 34A.02 and the long-standing recognition discussed herein of a trial court's inherent authority and wide discretion in imposing sanctions to ensure fundamental fairness and the proper administration of justice, we hold that intentional misconduct is not a prerequisite for a trial court to impose sanctions for the spoliation of evidence, including that of a negative inference. Indeed, while in the past under the common law doctrine of spoliation, there clearly was a prerequisite of intentional misconduct for a trial court to impose the specific sanction of a negative inference against the spoliating party, we see no reason to continue the requirement of intentional misconduct for the imposition of sanctions for the spoliation of evidence whether the sanction be imposed under the common law doctrine, under the inherent authority of the court, or under Rule 34A.02. We hold today that the analysis for the possible imposition of any sanction for the spoliation of evidence should be based upon a consideration of the totality of the circumstances. To adopt an inflexible, bright-line rule restricting a trial court's power to fashion the appropriate remedy for spoliation of evidence would be contrary to the trial court's inherent authority to sanction abuses of the discovery process and to remedy the potential prejudice caused thereby. Therefore, intentional misconduct should not be a prerequisite to the imposition of some sanction under any approach. Rather, such determinations should be made on a case-by-case basis considering all relevant circumstances. Whether the conduct involved intentional misconduct simply should be one of the factors considered by the trial court.
Id. at 745-46 (footnotes omitted). The Tatham Court set forth the applicable factors as follows:
The determination of whether a sanction should be imposed for the spoliation of evidence necessarily depends upon the unique circumstances of each case. Factors which are relevant to a trial court's consideration of what, if any, sanction should be imposed for the spoliation of evidence include:
(1) the culpability of the spoliating party in causing the destruction of the evidence, including evidence of intentional misconduct or fraudulent intent;
(2) the degree of prejudice suffered by the non-spoliating party as a result of the absence of the evidence;
(3) whether, at the time the evidence was destroyed, the spoliating party knew or should have known that the evidence was relevant to pending or reasonably foreseeable litigation; and
(4) the least severe sanction available to remedy any prejudice caused to the non-spoliating party.
A trial court's discretionary decision to impose a particular sanction "will be set aside on appeal only when ‘the trial court has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of evidence.’ " Mercer [v. Vanderbilt Univ., Inc. ], 134 S.W.3d [121,] 133 [(Tenn. 2004)] (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999) ).
Id. at 746-47 (footnote omitted).
In denying the Caldwells’ motion, the trial court found in pertinent part:
The depositions submitted to the Court reveal [Ruby Falls] had the ability to preserve [portions] of the video tape but that these video tapes were automatically deleted at some point after two to six weeks. A video from the camera believed to be focused on the area of the fall was reviewed by a Ruby Falls employee who did not see any evidence of the fall on the tape. However, it is the contention of [the Caldwells] that it is now established that employee was looking at the video from the wrong camera and that had she only looked at all of the available video the fall would have been visible.
There are a couple of flaws in this argument. First, there is evidence in the deposition that there are a few seconds worth of time when a person walking on the path is not visible on the video. Further, there is no evidence in the record that [Mr. Caldwell] actually would have been visible and the view of [Mr. Caldwell] would not have [been] blocked by some other person or object. Additionally, the accident report which was based on information given by [Mr. Caldwell] listed a different location of the fall from where [Mr. Caldwell] contended it occurred when his deposition was taken on October 22, 2019. This date is in excess of 14 months after the fall occurred and long after the video would have been deleted. There was no notice to Ruby Falls that is recorded that Mr. Caldwell's fall occurred in a place different than that noted on the incident report. There is no evidence establishing a different location of the fall before the video was deleted.
Against the above background, the culpability of Ruby Falls is insufficient to merit sanctions. The deletion of the tape was part of the normal procedures of Ruby Falls, occurred arguably before they had notice of the actual location of the fall, and there is no evidence they intentionally deleted film that had information on it that informed the way and
manner in which this accident occurred. [Mr. Caldwell] asserts he is highly prejudice[d] by this spoliation of evidence. However, although the evidence which has been deleted might have substantiated his version of the facts, it also eliminated any information on the video that would have been contradictory to his recitation of the way and manner in which the accident occurred. Accordingly, one is unable to determine which party actually is prejudiced by the deletion.
The third factor for consideration is whether at the time the evidence was destroyed the spoliating party knew or should have known the evidence was relevant to pending or reasonably foreseeable litigation. It certainly is arguable that Ruby Falls was aware of the significant potential for a lawsuit. An incident report was filled out and they were aware Mr. Caldwell had suffered an injury. Ruby Falls is a tourist attraction and in all probability not a stranger to lawsuits of this nature. However, there was not a claim pending at the time the deletion took place. Further, the lawsuit was not filed until January 30, 2019. The potential for litigation was significant and should have been reasonably foreseen. But one cannot say that Ruby Falls knew the litigation was imminent.
Weighing all of the above factors the Court finds that it is not appropriate to sanction Ruby Falls. Blocking the presentation of evidence by the defense concerning the incident is an overly severe sanction and the Court declines to impose it.
We will address the trial court's analysis of each factor in turn.
First, the trial court found that "the culpability of Ruby Falls [was] insufficient to merit sanctions" because the video footage's deletion was a "normal procedure[ ]" employed by Ruby Falls and because it had "occurred arguably before [Ruby Falls] had notice of the actual location of the fall." The trial court also noted that no evidence indicated that footage "that had information on it that informed the way and manner in which this accident occurred" had been intentionally deleted. The Caldwells assert that because Ruby Falls employees knew that video footage would be deleted if not saved and yet did not view all of the footage from the cavern that day, Ruby Falls’ culpability was grossly negligent and rose to a level requiring sanctions. We disagree.
In support of their culpability argument, the Caldwells rely on federal district court cases, particularly Equal Emp't Opportunity Comm'n v. Tepro, Inc. , No. 4:12-cv-75-HSM-SKL, 2014 WL 12562856, at *11 (E.D. Tenn. Aug. 29, 2014) (defining "[g]ross negligence" in the context of a spoliation culpability analysis in part as "a conscious neglect of duty or a callous indifference to consequences") (quoting Thrasher v. Riverbend Stables, LLC , No. M2008-02698-COA-RM-CV, 2009 WL 275767, at *4 (Tenn. Ct. App. Feb. 5, 2009) ), and Clemons v. Corrs. Corp. of Am., Inc. , No. 1:11-CV-339, 2014 WL 3507299, at *2 (E.D. Tenn. July 14, 2014) (same). We note that "[c]ases from other jurisdictions, including federal cases, are always instructive, sometimes persuasive, but never controlling in our decisions." Summers Hardware & Supply Co., Inc. v. Steele , 794 S.W.2d 358, 362 (Tenn. Ct. App. 1990).
Moreover, we find the decisions in Tepro and Clemons to be unavailing to the Caldwells’ argument. In Tepro , the district court did "not find that discovery sanctions [were] just" when an employee of the defendant's had " ‘tossed’ " an employee seniority list prior to the defendant's receiving notice of a lawsuit alleging age discrimination. Tepro , 2014 WL 12562856, at *12. In Clemons , the district court granted the plaintiff's motion for sanctions against a correctional facility for destruction of video footage taken while the plaintiff was an inmate experiencing premature labor, which ultimately culminated in the birth of a child that did not live. Clemons , 2014 WL 3507299, at *1-2. In sanctioning the defendant facility, the Clemons court found that the assistant warden had testified to his reliance on the videotape in constructing a timeline of events and that the plaintiff had notified the defendant facility within a week of the incident regarding the need to preserve the footage. Id. at *3. In the case at bar, the record contains no indication that Ruby Falls employees located video footage of Mr. Caldwell's fall, and Ruby Falls was not notified of the lawsuit until approximately six months after the incident. Furthermore, the respective testimonies of Ms. Van Brunt and Ms. McRae supported the trial court's finding that the deletion of the video footage was a routine practice.
We find this Court's recent decision in Zukowski ex rel. Zukowski v. Hamilton Cnty. Bd. of Educ. , 640 S.W.3d 505 (Tenn. Ct. App. 2021), to be instructive. In Zukowski , the plaintiff parents filed an action on behalf of their minor son against the county board of education, alleging, under the Governmental Tort Liability Act, that the board had failed to protect their son from bullying while at school after the problem became known. Zukowski , 640 S.W.3d at 508. The spoliation issue in Zukowski involved the board's failure to stop a school counselor's destruction of records when she left the school's employment. Id. at 520. The trial court denied the plaintiffs’ request for a spoliation sanction of "favorable inferences." Id. Applying the Tatham factors, this Court determined that the trial court had not abused its discretion, particularly noting testimony indicating that the counselor's "destruction of her student files upon leaving [the school] was a legitimate and regular practice grounded in concern for confidentiality" and rejecting the plaintiffs’ argument that the destruction of counseling records indicated an attempted "cover-up" of the bullying. Id. at 521. Although not grounded in concern for confidentiality, Ruby Falls’ practice of allowing video footage to "roll over" and be overwritten was also routine, and the record contains no evidence that Ruby Falls employees purposefully allowed footage that showed Mr. Caldwell's fall to be destroyed.
Second, the trial court found that it was "unable to determine which party actually [was] prejudiced by the deletion" because although the deleted footage "might have substantiated [Mr. Caldwell's] version of the facts," the deletion also eliminated any contradictory information. Again relying on the federal district court's decision in Clemons , the Caldwells argue that it was not necessary for them to demonstrate that the spoliated evidence would have been helpful to their claim but only that it could have been helpful. See Clemons , 2014 WL 3507299, at *16 (stating that no requirement exists "within the Sixth Circuit that the party seeking sanctions show the spoliated evidence would support her claim" and that "the movant for sanctions need only show that the spoliated evidence could have been useful to her claim"). The Caldwells essentially argue that because the video evidence may have been relevant to the Caldwells’ claim, the trial court should have imposed sanctions on Ruby Falls for its deletion.
The Caldwells’ reliance on this postulate fails to take into account our Supreme Court's instruction that "the analysis for the possible imposition of any sanction for the spoliation of evidence should be based upon a consideration of the totality of the circumstances." See Tatham , 473 S.W.3d at 746 (emphasis added). The fact that video footage may have been relevant does not immediately equate to imposition of a sanction for the video's destruction. In this instance, the trial court noted testimony indicating that due to the nature of the cavern and placement of cameras, guests were not always visible on camera, meaning that whether any of the overwritten video footage would have shown Mr. Caldwell's fall is open to question. Additionally, as the trial court found, it is impossible to know whether video of Mr. Caldwell's fall would have supported his version of events or undercut his claim. The Caldwells argue that at the least, the "jury could have seen the crowded walkways where [Mr.] Caldwell was injured and the line of people blocking his access to the passage's handrail." However, the record is already replete with testimony concerning the manner in which groups passed each other, and Ruby Falls has not refuted the Caldwells’ presentation of elevator trip logs indicating that up to 516 people were in the cavern during the Caldwells’ tour. See, e.g. , Zukowski , 640 S.W.3d at 521 (determining no abuse of discretion in the trial court's finding that the plaintiffs were not prejudiced by the absence of a counselor's records purportedly demonstrating that their child had been bullied when "the fact of [the child] having been bullied [was] well-established elsewhere in the record").
Third, the trial court found that at the time Ruby Falls employees allowed the video footage to be overwritten, Ruby Falls reasonably should have foreseen the potential for litigation related to Mr. Caldwell's accident. However, because the court also found that "there was not a claim pending at the time the deletion took place," the court determined that Ruby Falls did not know the litigation was "imminent." The court thereby appears to have weighed this factor neither for nor against a spoliation sanction, and the Caldwells have not taken issue with this specific finding on appeal.
Finally, the trial court considered the severity of the requested sanction that would have blocked Ruby Falls from presenting evidence concerning the incident at issue and found this sanction to be "overly severe." We agree. Moreover, we discern no abuse of discretion in the trial court's denial of the Caldwells’ request for sanctions because in carefully weighing the Tatham factors, the trial court properly applied "the controlling legal principles" and reached its decision consistently with "the substantial weight of the evidence." See Tatham , 473 S.W.3d at 747 (quoting Mercer v. Vanderbilt Univ., Inc. , 134 S.W.3d 121, 133 (Tenn. 2004) ); cf. Gardner v. R & J Express, LLC , 559 S.W.3d 462, 471 (Tenn. Ct. App. 2018) (affirming the trial court's imposition of a spoliation sanction upon concluding that the trial court did not "misconstrue[ ] or misappl[y] the controlling legal principles" or act "inconsistently with the substantial weight of evidence") (quoting Mercer v. Vanderbilt Univ., Inc. , 134 S.W.3d 121, 133 (Tenn. 2004) ).
Although the trial court's order denying the Caldwells’ request for spoliation sanctions is in the appellate record as a supplement to the technical record, the corresponding motion is not in the record. In their reply brief on appeal, the Caldwells state that they "moved the trial court to bar Ruby Falls from presenting evidence inconsistent with [Mr. Caldwell's] testimony and to require the jury to infer that the destroyed video would have damaged Ruby Falls’ position." The trial court's statement of the requested relief in its order is slightly broader, encompassing all evidence the defense could present "concerning the incident." Inasmuch as the motion is not in the record and the Caldwells do not cite to the record in summarizing their sanction requests, we must presume that the trial court's summary of the requested evidentiary sanction is accurate. See King v. Bank of Am., N.A. , No. W2018-01177-COA-R3-CV, 2020 WL 7861368, at *3 n.1 (Tenn. Ct. App. Dec. 29, 2020) ("We emphasize that this Court reviews the record on appeal as it is filed by the trial court.") (citing Tenn. R. App. P. 13(c) ; Tenn. R. App. P. 24(a), (e) ; Jennings v. Sewell-Allen Piggly Wiggly , 173 S.W.3d 710, 712 (Tenn. 2005) ).
Additionally, we note that within their argument regarding the prejudice factor of the spoliation sanction, the Caldwells assert that the jury instruction concerning missing evidence given by the trial court was not sufficient to offset the prejudice experienced by the Caldwells due to the destruction of the videotape footage. Approximately two weeks prior to trial and eight months after the trial court had denied the Caldwells’ motion requesting spoliation sanctions, the Caldwells filed their motion for an additional jury instruction modeled after Tennessee Pattern Jury Instruction—Civil 2.04 Absence of Witness or Evidence. The trial court granted this motion, providing the requested instruction with one modification, the addition of a closing sentence directing jurors not to speculate concerning the contents of the missing evidence. The instruction given to the jury stated:
Under certain circumstances you may consider the absence of evidence. You may conclude that the evidence would be adverse to that party who failed to offer it only if you find all of the following factors: Number 1, that it was within the power of the party to offer evidence on an issue in this case, but that party has failed to offer the evidence; and number 2, the evidence was uniquely under the control of the party and could have been produced by the exercise of reasonable diligence; and number 3, the evidence was not equally available to an adverse party; and number 4, the evidence would not be merely cumulative; and number 5, a reasonable person under the same or similar circumstances would have offered the evidence if the evidence would be favorable; and number 6, no reasonable excuse for the failure has been shown.
You must find all of these elements before you can conclude that the evidence would be adverse to a party. You may not speculate about what the evidence would have been.
Within their responsive argument to the Caldwells’ spoliation issue, Ruby Falls asserts that the Caldwells were not prejudiced by the absence of the videotape evidence because the trial court "ultimately provided the spoliation instruction that [the Caldwells] requested" through a jury instruction on missing evidence. In their reply brief, the Caldwells take issue with this statement, asserting that Ruby Falls’ position ignores the original relief sought by the Caldwells through sanctions. The Caldwells also argue that the trial court's addition of the final sentence to the jury instruction materially altered the requested instruction such that it "allowed but did not require an adverse inference."
As this Court has explained:
Under the missing evidence rule, the trier of fact may infer that missing evidence would have been unfavorable to the party that failed to offer it into evidence if the evidence was in that party's exclusive possession and the evidence "would be ‘capable of shedding light on a material contested issue.’ "
Alumbaugh v. Wackenhut Corp. , No. M2016-01530-COA-R3-CV, 2018 WL 5733293, at *9 (Tenn. Ct. App. Oct. 31, 2018) (quoting Tatham , 473 S.W.3d at 740 n.3 (in turn quoting Richardson v. Miller , 44 S.W.3d 1, 27-28 (Tenn. Ct. App. 2000) )). However, as the Alumbaugh Court further explained: "When evidence has been destroyed, the doctrine of spoliation may apply, but not the missing evidence rule." Alumbaugh , 2018 WL 5733293, at *9 (citing Tatham , 473 S.W.3d at 740 n.3 ). This is because "[a] defining characteristic of ‘missing evidence’ is that the party possessing the evidence could have used the evidence at trial but for some reason chose not to do so." Id.
Having determined that the trial court did not abuse its discretion in denying the Caldwells’ request for spoliation sanctions, we further determine the Caldwells’ argument regarding the purported insufficiency of the jury instruction to be unavailing in the context of the prejudice analysis. Furthermore, we clarify that because the argument concerning the jury instruction arose only within the context of the prejudice factor in the spoliation analysis and because neither party has raised an issue on appeal regarding jury instructions, we deem any further issue related to the jury instruction concerning videotape footage to be waived. See Forbess v. Forbess , 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011) ("We may consider an issue waived where it is argued in the brief but not designated as an issue.").
V. Trial Court as Thirteenth Juror
The Caldwells’ final two issues raised on appeal involve the trial court's role as thirteenth juror in considering a motion for new trial. The Caldwells contend that the trial court erred by declining to find that the evidence preponderated against (1) the jury's causation determination under a common law negligence theory and (2) the jury's determination that the IBC did not apply to the cavern, thereby foreclosing a finding that Ruby Falls was negligent through violation of the IBC. Ruby Falls contends that the trial court properly exercised its function as thirteenth juror and should be afforded the presumption on appeal that it weighed the evidence when approving the jury's verdict. Upon thorough review of the entire record and the trial court's order denying the motion for new trial, we agree with Ruby Falls.
Under Tennessee Rules of Civil Procedure 59.06 and 59.07, a trial court may grant a new trial because the jury's verdict is "contrary to the weight of the evidence." See In re Estate of Link , 542 S.W.3d 438, 467 (Tenn. Ct. App. 2017) (citing Tenn. R. Civ. P. 59.06 ). In determining whether to grant a new trial on this ground or approve the jury's verdict, the trial judge acts as a "thirteenth juror." See Borne , 532 S.W.3d at 308. As this Court has explained:
When a party moving for a new trial asserts that the jury's verdict was contrary to the weight of the evidence, it is the trial judge's duty to independently weigh the evidence to determine whether it preponderates against the verdict and, if so, to grant a new trial. Jones v. Tenn. Farmers Mut. Ins. Co. , 896 S.W.2d 553, 556 (Tenn. Ct. App. 1994). Like the jury, the trial judge is not bound to give any reasons for its decision to grant or deny a new trial based on the preponderance of the evidence. Cooper v. Tabb , 347 S.W.3d 207, 221 (Tenn. Ct. App. 2010). When the trial judge approves the verdict without comment, the appellate court will presume that the trial judge adequately performed his or her function as the thirteenth juror. Id. However, a statement indicating that the trial judge has misconceived his or her duty is grounds for reversal on appeal. Shivers v. Ramsey , 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996).
In re Estate of Link , 542 S.W.3d at 467 (emphasis added). Upon reviewing "the evidentiary foundation of a jury's verdict regarding liability," "[a]ppellate courts are not a jury of three with the prerogative to re-weigh the evidence or to determine where the ‘truth’ lies." Duran , 271 S.W.3d at 204-05 (internal citations omitted).
The Caldwells challenge the jury's causation finding under a common law theory of negligence and the jury's finding that the IBC did not apply to the cavern. In general, Tennessee courts recognize that the elements needed to establish a claim of negligence are:
1. a duty of care owed by defendant to plaintiff;
2. conduct below the applicable standard of care that amounts to a breach of that duty;
3. an injury or loss;
4. cause in fact; and
5. proximate, or legal, cause.
McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995). In a premises liability case such as the one at bar, "an owner or occupier of premises has a duty to exercise reasonable care with regard to social guests or business invitees on the premises" and that "duty includes the responsibility to remove or warn against latent or hidden dangerous conditions on the premises of which one was aware or should have been aware through the exercise of reasonable diligence." Rice v. Sabir , 979 S.W.2d 305, 308 (Tenn. 1998).
As to causation, it is well settled that a negligence claim requires proof of both causation in fact and proximate cause. Hale v. Ostrow , 166 S.W.3d 713, 718 (Tenn. 2005). "Causation [in fact] and proximate cause are distinct elements of negligence, and both must be proven by the plaintiff by a preponderance of the evidence." Id. (quoting Kilpatrick v. Bryant , 868 S.W.2d 594, 598 (Tenn. 1993) ). As our Supreme Court has explained:
The defendant's conduct is the cause in fact of the plaintiff's injury if, as a factual matter, it directly contributed to the plaintiff's injury. In a case such as this one, we must ask whether the plaintiff's injury would have happened "but for" the defendants’ act. See Wood v. Newman, Hayes & Dixon Ins. Agency , 905 S.W.2d 559, 562 (Tenn. 1995). If not, then the defendants’ conduct is a cause in fact of the plaintiff's injury. It is not necessary that the defendants’ act be the sole cause of the plaintiff's injury, only that it be a cause.
Hale , 166 S.W.3d at 718.
In addition to their initial common law negligence claim, the Caldwells added an allegation in their second amended complaint that Ruby Falls had been negligent by violating the IBC. Although the Caldwells did not utilize the phrase, "negligence per se ," in their second amended complaint, the jury instructions included, without objection, reference to the proof concerning the IBC as related to the doctrine of negligence per se. "Liability under the negligence per se doctrine can arise when a party fails to perform a duty imposed by statute or ordinance." Shaw v. Metro. Gov't of Nashville & Davidson Cnty. , 596 S.W.3d 726, 734 (Tenn. Ct. App. 2019). As the Shaw Court delineated in relevant part:
Specifically, the following elements must be established in order for a party to recover under the theory of negligence per se :
First, the defendant must have violated a statute or ordinance that imposes a duty or prohibition for the benefit of a person or the public. Second, the injured party must be within the class of persons intended to benefit from or be protected by the statute. Finally, the injured party must show that the negligence was the proximate cause of the injury.
Id. (quoting Harden v. Danek Med., Inc. , 985 S.W.2d 449, 452 (Tenn. Ct. App. 1998) ) (internal citations omitted in Shaw ). Following deliberation, the jury completed the verdict form as follows:
We, the jury, unanimously answer the questions submitted by the Court as follows:
1. Do you find Defendant Ruby Falls, LLC negligent because of (answer all):
a. A violation of a common-law duty to use ordinary care to avoid injury to a visitor on its premises?
Yes X No ___
b. Do you find the area of Ruby Falls, LLC where the fall occurred is a building within the meaning of the 2012 International Building Code?
Yes ___ No X
c. Do you find the area of Ruby Falls, LLC where the fall occurred is a structure within the meaning of the 2012 International Building Code?
Yes ___ No X
If you find the answers to 1(a), 1(b), and 1(c) are "No", you have returned a verdict for Ruby Falls LLC. Sign the Verdict Form and return to the courtroom.
2. If your answer to 1 (a) is "yes", do you find such negligence was a legal and factual cause of the damages the plaintiffs claim?
Yes ___ No X
3. If your answer to 1 (b) or 1 (c) is "Yes", do you find Ruby Falls, LLC violated a section of the 2012 International Building Code?
Yes ___ No ___
If your answer to 3 is "Yes", go to question 4. If you have answered "No" to 2 and 3, you have returned a verdict for Ruby Falls, LLC. Sign the Verdict Form and return to the courtroom.
(Subsequent portion of the form not reached by the jury omitted.)
To summarize, the jury found that Ruby Falls had violated its common law duty to use ordinary care to avoid injury to a visitor on its premises. However, the jury found that this violation of a common law duty was not the legal and factual cause of the Caldwells’ claimed damages. Related to the negligence per se doctrine, the jury found that the area of the cavern where the fall occurred did not constitute a building or a structure within the meaning of the IBC. The Caldwells acknowledge that this finding equated to a determination that the IBC did not apply to the walkways in the cavern. The jury therefore returned a verdict in favor of Ruby Falls.
In its order denying the Caldwells’ motion for new trial, the trial court stated the following:
The Court independently reviewed the evidence presented at trial, considered the issues raised in [the Caldwells’] Motion for New Trial, and considered the arguments of counsel. The Court finds that the evidence does not preponderate against the jury's verdict in favor of [Ruby Falls], that the weight of the evidence supports the jury's verdict, and the Court approves the verdict.
In support of their contention that the trial court erred by declining to find that the evidence weighed against the jury's determinations regarding causation and the inapplicability of the IBC, the Caldwells rely on factual arguments related to the evidence presented at trial. They do not point to any statement made by the trial court as "indicating that the trial judge [had] misconceived ... her duty" upon reviewing a motion for new trial. See In re Estate of Link , 542 S.W.3d at 467. Specifically concerning the trial court's approval of the jury's finding that the IBC did not apply to cavern walkways, the Caldwells urge that Mr. Geren's expert testimony that the IBC applied to the cavern was more persuasive than Mr. Dodd's and Mr. Rucker's respective testimonies that the IBC did not apply to the cavern. However, "the trier of fact is not bound to accept an expert witness's testimony as true, and it may reject any expert testimony that it finds to be inconsistent with the credited evidence or is otherwise unreasonable." Roach v. Dixie Gas Co. , 371 S.W.3d 127, 150 (Tenn. Ct. App. 2011).
We note that although the trial court conducted a hearing concerning the motion for new trial, no transcript of that hearing is in the record.
Here, in approving the jury's verdict, the trial court expressly stated that it had "independently reviewed the evidence presented at trial" and found that "the evidence [did] not preponderate against the jury's verdict," which the court found to be supported by the "weight of the evidence." The trial court judge made no further comment. Thus, our role as the appellate court is to "presume that the trial judge adequately performed [her] function as the thirteenth juror." See In re Estate of Link , 542 S.W.3d at 467 ; see, e.g. , Davidson v. Lindsey , 104 S.W.3d 483, 491-92 (Tenn. 2003) (reinstating the trial court's approval of the jury's verdict upon determining that "[t]here is nothing in the record to indicate that the trial judge failed to adequately perform his duty as thirteenth juror" when "the record reflect[ed] that [the trial judge] logically considered the issues and indicated his satisfaction"). Accordingly, we are satisfied that in denying the Caldwells’ motion for new trial, the trial court judge adequately performed her role as thirteenth juror and did not err in approving the jury's verdict as to causation and the inapplicability of the IBC to the cavern.
VI. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court. We remand this case for collection of costs below. Costs on appeal are taxed to the appellants, David Caldwell and Nancy Caldwell.