Kim v. State

622 S.W.3d 753

Heun KIM et al.

v.STATE of Tennessee

No. W2019-01027-COA-R3-CV

Court of Appeals of Tennessee, Western Section, AT JACKSON.

August 11, 2020 Session

FILED October 30, 2020

Charles L. Holliday, Jackson, Tennessee, for the appellants, Heun Kim, and Joung Kim.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Laura Miller, Assistant Attorney General, for the appellee, State of Tennessee-Civil.

J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold B. Goldin and Kenny W. Armstrong, JJ., joined.

J. Steven Stafford, P.J.

This matter is before the court for a second time. Plaintiffs filed a negligence suit in the Tennessee Claims Commission against the State of Tennessee after their six-year-old son fell from the fifth-floor balcony of the state-owned and -operated Paris Landing State Park Inn. Plaintiffs alleged that the State was negligent in two respects: 1) in allowing their son to gain access to an unoccupied guest room and the attached balcony, and 2) in maintaining balcony railings that were shorter in height than was required by applicable building codes. Following a bench trial, the Tennessee Claims Commissioner concluded that the Plaintiffs failed to establish that the State's negligence was the proximate cause of their son's injuries. Plaintiffs appealed to this Court, and we held that the Commissioner's conclusions of law were deficient and vacated and remanded the case for further consideration. On remand, the Commissioner entered a supplemental order that included additional conclusions of law as to both claims for negligence, and, again, determined that the Plaintiffs failed to meet their burden of proving that the Inn's acts were the proximate cause of their son's fall and dismissed the claim in its entirety. Plaintiffs again appeal. We affirm the Commissioner's holding that Plaintiffs failed to establish that the negligence of the Inn was the proximate cause of their son's injuries.

FACTUAL AND PROCEDURAL BACKGROUND

Since this case is being appealed to this Court for a second time, and the facts are not disputed by either party, we adopt our previous recitation of the factual background provided in Heun Kim v. State , No. W2018-00762-COA-R3-CV, 2019 WL 921039, at *1–3 (Tenn. Ct. App. Feb. 26, 2019). The facts are as follows:

The relevant facts in the present case are largely undisputed. Heun Kim ("Mr. Kim") and his wife Joung Kim ("Mrs. Kim" or, collectively, "the Kims") attended a church retreat at the Paris Landing Park State Inn ("the Inn") over Labor Day weekend of 2012. The Kims’ two sons, Aaron and Daniel, were also in attendance, and the family stayed in room 509 of the Inn's "A-wing." On the morning of September 3, 2012, the Kims checked out of their room at approximately 11:30 a.m. but remained on the premises to do various activities with their church group. Meanwhile, Mary Wright ("Ms. Wright"), a housekeeper employed by the Inn, cleaned room 509 around noon.

Later in the afternoon, as the Kims’ church group prepared to leave, Daniel became separated from his mother in the midst of the activity. In search of her, Daniel made his way back up the elevator to room 509. Upon reaching the guest room, Daniel found the door to be unlocked and slightly ajar and proceeded into the room. Daniel then gained access to the balcony of room 509. Ultimately, Daniel fell from the fifth floor balcony and sustained significant injuries to his face, head, and one of his legs.

The Kims filed suit against the State of Tennessee ("the State") in the Tennessee Division of Claims Administration on August 21, 2013, and the case was later transferred to the Tennessee Claims Commission ("the Commission"). The Kims alleged that the State had a duty to its guests to control access to unoccupied guest rooms, and, alternatively, that the balcony railing over which Daniel fell was a dangerous condition that was negligently maintained by the Inn. The Kims’ theory was that the Inn was negligent in allowing a small child to gain access to an unoccupied guest room, thereby resulting in Daniel's fall. Alternatively, the Kims alleged that the guard rail to the balcony was a dangerous condition, specifically that the railing was "dangerously short ... and constructed in such a manner that it would encourage a young child to climb onto the railing." See Tenn. Code Ann. § 9-8-307(a)(1)(C) & (E). The State answered by alleging that the Kims’ comparative fault in failing to adequately supervise Daniel precluded the Kims from recovering any damages. Further, the State raised the issue of liability on the part of the contractor who installed the balcony railings in 2004.

Soon after, the State moved for summary judgment, urging that the Kims’ negligent care and control claim under section 9-8-307(a)(1)(E) failed as a matter of law because Daniel was never in the care or custody of the State. Second, the State argued that it owed no duty of care to prevent the accident and, alternatively, that the Kims could not establish that any actions on the State's part were the proximate cause of Daniel's injuries. The Claims Commissioner ("the Commissioner") denied the motion in part, determining that the State indeed owed a duty of care to the Kims, and that questions of fact remained regarding proximate cause. As such, the Kims’ claim under section 9-8-307(a)(1)(C) survived. The Commissioner did, however, grant summary judgment to the State as to the claims related to section 9-8-307(a)(1)(E) for negligent care, custody, and control of persons. The case proceeded to a three-day trial beginning on February 12, 2018.

The Commissioner heard testimony from several witnesses, including Mr. and Mrs. Kim, Daniel, Ms. Wright, other members of the housekeeping staff, and various staff members of the Inn. The testimony of the witnesses reflected largely the same account of the events of September 3, 2012.

Mr. and Mrs. Kim testified at length about the day of Daniel's fall. It was undisputed that late in the afternoon, around 4:00 p.m., Mrs. Kim lost track of Daniel. Both parents testified that they searched for Daniel for approximately five minutes before a member of the Inn's staff informed them that Daniel had been found outside. Mr. Kim testified that Daniel was hospitalized for nearly a week after his fall, and had to wear a cast on his leg and use a walker for several months afterwards. Further, Mr. Kim testified that he eventually missed so much work due to having to care for Daniel that Mr. Kim had to quit his job. He also stated that Daniel missed a semester of school while in recovery. Mrs. Kim also testified that since the fall, Daniel has largely recovered but that he does have a fear of heights and has expressed some anxiety over the concept of death. Daniel's recollection of his fall was similar to that of his parents, and he testified that when he returned to room 509 after becoming separated from his parents, he found the door to the room slightly ajar. Daniel also admitted that he intentionally climbed on top of the balcony railing because he could not see over it.

The Commissioner heard further testimony from several staff members of the Inn. This testimony reflected that Ms. Wright was the housekeeper who cleaned room 509 on September 3, 2012, and that she did so around noon. There was an unwritten, but undisputed, policy at the Inn that once a room was clean, it must be locked in order to make sure that no one could access the unoccupied room. Moreover, Ms. Wright conceded that she had previously been reprimanded for neglecting to secure a room after cleaning it. According to Ms. Wright, the policy regarding the locked doors was meant to ensure the safety of the Inn as well as the cleanliness of the rooms. The head housekeeper, Gail Brake ("Ms. Brake") confirmed Ms. Wright's testimony regarding the policy on cleaned rooms. According to Ms. Brake, it was the Inn's policy, as well as general industry standard in all hotels, that a room should always be locked once a guest has checked out and the room has been cleaned. Moreover, Ms. Brake indicated that once a housekeeper has completed cleaning on a floor, the housekeeper is instructed to check every room on that floor to ensure it is locked. Moreover, all members of the housekeeping staff who testified noted that the doors in the A-wing where the Kims stayed were heavy and difficult to close; indeed, several witnesses testified that the A-wing doors would swell on hot days making those doors particularly difficult to secure.

The swelling of the doors in A-wing was also confirmed by the managers of the Inn who testified, as well as the facilities manager. Importantly, every staff member of the Inn that testified confirmed that if a guest had already checked out and returned their room key, and the room had been cleaned by housekeeping, then there would be no way for the guest to then re-access the room unless the door was left unlocked by the housekeeping staff. This testimony was undisputed. Further, the testimony of the Inn staff reflected their understanding that the policy on securing unoccupied rooms was meant to promote the cleanliness of the Inn as well as the safety of the guests. Inn manager Mitzi Hammonds agreed on cross-examination that an unoccupied, unsecured guest room could pose a safety risk because a guest could be attacked or a child could be molested in the room.

The testimony also reflected that the railings of the balcony were not compliant with the applicable building codes. Indeed, the Commissioner heard testimony from Chris Bainbridge, who was the Director of Codes Enforcement for the State during September of 2012. Mr. Bainbridge opined that although the A-wing balcony rails were replaced in 2004, they were not the forty-two inches in height that would have been required by the applicable building code at that time. Rather, the rails that were installed in 2004 were only thirty-six

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