Caldwell v. Ruby Falls, LLC

674 S.W.3d 899

David CALDWELL et al.

v.RUBY FALLS, LLC

No. E2021-01486-COA-R3-CV

Court of Appeals of Tennessee, Eastern Section, AT KNOXVILLE.

August 16, 2022 Session

FILED January 30, 2023

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...