February - April 2013
· When appealing from sessions to circuit court, payment of court costs set forth in T.C.A. § 8-21-401(b)(1)(C)(i) (2005) satisfies Appellant’s obligation to file an appeal bond, overruling Jacob v. Partee, No. W2012-00205, 2012 Tenn. App. LEXIS 555 (Tenn. App. Aug. 10, 2012), perm. app. denied (Tenn. Dec. 12, 2012). Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803, 2013 Tenn. App. LEXIS 106 (Tenn. App. Feb. 15, 2013).
· Majority reaches same holding as in Bernatsky, but dissent opines that Bernatsky is based on a flawed premise, as T.C.A. § 27-5-103 (2000) clearly requires an appeal bond rather than simply upfront payment of costs on appeal to circuit court. Andrews v. Clemmer, No. W2012-00986, 2013 Tenn. App. LEXIS 145 (Tenn. App. Feb. 28, 2013).
· Defendant’s failure to notify court or opposing counsel that he was changing attorneys again dooms his Rule 60.02 motion for relief from default judgment, even though he was not personally aware of the motion for default or hearing on the same. Butler v. Vinsant, No. M2012-01553, 2013 Tenn. App. LEXIS 256 (Tenn. App. Apr. 15, 2013).
· Action to enforce contract for mutual wills may be brought not only as claim against Decedent’s estate, but also through a will contest or action seeking specific performance of contract. In re Estate of Brown, No. E2011-00179, 2013 Tenn. LEXIS 308 (Tenn. Mar. 22, 2013).
· Discovery delays of about four (4) months by Plaintiff did not warrant dismissal when there is no evidence of Plaintiff being intentionally evasive or stonewalling Defendant. Am. Express Centurion Bank v. Lowrey, No. E2011-01247, 2013 Tenn. App. LEXIS 176 (Tenn. App. Mar. 11, 2013).
· Payment of judgment into registry of trial court does not confer subject matter jurisdiction on the trial court to adjudicate claim for attorney’s fees between counsel and a party in the trial court, which must instead be brought in a separate action. Castle v. David Doris Logging, Inc.,No. W2012-00917, 2013 Tenn. App. LEXIS 87 (Tenn. App. Feb. 11, 2013).
· Award of discretionary costs to Defendant pursuant to Fed. R. Civ. P. 54 in proceeding brought under Fair Debt Collection Practices Act is permissible despite provisions of said act. Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 185 L. Ed. 2d 242, 2013 U.S. LEXIS 1859 (U.S. Feb. 26, 2013).
· Tennessee courts cannot constitutionally exercise personal jurisdiction over Indonesian cigarette manufacturer despite large quantity of its cigarettes being sold here where manufacturer simply placed same in “international stream of commerce.” State v. NV Sumatra Tobacco Trading Co., No. M2010-01955, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).
Evidence & Civil Procedure
· Admitting evidence of a party’s real estate ownership and execution of her deceased mother’s will was prejudicial error in trial concerning her marriage to her deceased husband and her deceased husband’s execution of his will, but issue of standing was waived when not pled in the trial court. In re Estate of Smallman, 398 S.W.3d 134 (Tenn. App. 2013).
· Arbitration provisions of Tennessee’s UM statute do not apply when UM policy was delivered to Plaintiff in another state. Nelson v. Nelson, No. E2012-01316, 2013 Tenn. App. LEXIS 124 (Tenn. App. Feb. 22, 2013), perm. app. filed (Tenn. Apr. 22, 2013).
· Where ERISA Plan was silent on allotment of payment of attorney’s fees, common-fund doctrine would fill in contractual gap to prevent Plan from “free riding” on employee’s recovery of damages from third-party tortfeasor. U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 185 L. E. 2d 654, 2013 U.S. LEXIS 3156 (U.S. Apr. 16, 2013).
· Insufficient staffing of assisted living facility supported verdict that facility deviated from the standard of care because “in an employment setting, if there is too much work required of too few employees, either the work will not get done or the quality of the work will be diminished.” Wilson v. Americare Sys., 397 S.W.3d 552 (Tenn. 2013).
· On call employee’s accident when returning home from work is compensable where time on call is compensated and conditions for same are restricted by Employer. Shannon v. Roane Medical Ctr., No. E2011-02649, 2013 Tenn. LEXIS 301(Tenn. Spec. Workers’ Comp. App. Panel Mar. 13, 2013).
· Approval of workers’ compensation settlement by Department of Labor means that the courts have no subject matter jurisdiction to address incorrect SD-1 Form filed with such settlement. Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114 (Tenn. 2013).
· Claimant’s testimony that something on the floor at work caused her right foot to stick and then her subsequent slip and fall is sufficient evidence (when found credible by the trial court) that fall was not idiopathic, despite absence of any other evidence of substance or floor irregularities where Claimant fell. Vandall v. Aurora Healthcare, LLC, No. W2011-02042, 2013 Tenn. LEXIS 426 (Tenn. Apr. 24, 2013).
Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803, 2013 Tenn. App. LEXIS 106 (Tenn. App. Feb. 15, 2013).
Overruling its decision in Jacob v. Partee, No. W2012-00205, 2012 Tenn. App. LEXIS 555 (Tenn. App. Aug. 10, 2012), perm. app. denied (Tenn. Dec. 12, 2012), the Western Section of the Tennessee Court of Appeals concluded that a cash bond paid in the amount of the court costs set forth in T.C.A. § 8-21-401(b)(1)(C)(i) (2005) satisfies a plaintiff's obligation "to give bond with good security . . . for the cost of the appeal" under T.C.A. § 27-5-103(a) (2000), when appealing from sessions to circuit court. Contrary to the holding in Jacob, Judge Kirby wrote that requiring a bond in an unlimited amount for sessions court appeals was inconsistent with the legislative intent of the latter aforesaid statute, does not make practical sense, and undermines the statute's constitutionality. The court went on to hold that the payment of $211.50 in this case satisfied the requirements of a cash bond for appeal, as the same is the standard cost set forth in the former aforesaid statute. In a separate concurrence, Judge Farmer noted that our supreme court had denied permission to appeal from both the Jacob decision and Carter v. Batts, 373 S.W.3d 547 (Tenn. App. 2011), even though they appeared to reach opposite conclusions, and he urged the supreme court and general assembly to come up with a final solution. Also concurring, Judge Stafford wrote to further emphasize his opinion that, contrary to Jacob, an ambiguity does exist in the latter statute.
Andrews v. Clemmer, No. W2012-00986, 2013 Tenn. App. LEXIS 145 (Tenn. App. Feb. 28, 2013).
Exactly two weeks after Bernatsky, supra, the majority of the western section followed its decision therein by reversing the trial court's dismissal of Plaintiff's appeal from sessions court. The majority held once again that payment of $211.50 in court costs satisfied the bond requirement when appealing from sessions to circuit court, and that there was no reason to distinguish this case from Bernatsky.
However, Presiding Judge Highers, who authored last year's Jacob decision, issued a lengthy dissent in which he opined that Bernatsky is based upon a flawed premise. He noted that the court's decision in Jacob expressly rejected the contention that T.C.A. § 27-5-103 was ambiguous, but instead that it plainly requires a bond on appeal "which secures all costs incurred throughout the appeal, as opposed to an initial appeal filing fee." See Jacob, supra, at *8 (emphasis added). Noting that no court before Bernatsky had ever found an ambiguity in the appeal bond statute, Judge Highers vehemently opined that the plain language of T.C.A. § 27-5-103 requires that an appeal bond cover costs on appeal. Since there was no ambiguity in said statute, he noted that the court did not need to review legislative history on the same, as the majority had done in this case and Bernatsky. He further argued that the bond for all court costs on appeal does not require "an unlimited" bond, and opined that the majority's reliance on legislative history was not persuasive, and that § 8-21-401 should not even be considered on this issue.
After Bernatsky and Andrews, the western section issued two additional opinions in which the majority followed its holdings in the same, and Judge Highers reiterated his dissent. See West v. AMISUB (SFH), Inc., No. W2012-00069, 2013 Tenn. App. LEXIS 191 (Tenn. App. Mar. 21, 2013) (also holding that certificate of good faith requirement of medical malpractice statute applies in any court, including sessions); Brown v. Shtaya, No. W2012-00875, 2013 Tenn. App. LEXIS 162 (Tenn. App. Mar. 6, 2013). Meantime, in cases before western section panels in which Judge Highers did not sit, the court issued subsequent opinions following the majority's holding in Bernatsky. See, e.g., Fields v. Williams, No. W2012-01949, 2013 Tenn. App. LEXIS 302 (Tenn. App. Apr. 30, 2013). However, neither the middle nor eastern sections of the court has cited Bernatsky in any fashion.
Butler v. Vinsant, No. M2012-01553, 2013 Tenn. App. LEXIS 256 (Tenn. App. Apr. 15, 2013).
Two months after she amended her petition, Mother moved for default. Such motion was set for hearing about two months after filing, and neither Father nor his attorney appeared at the default hearing, at which the trial court granted default judgment, since no answer was filed. About three months after the judgment was filed, Father moved to vacate pursuant to Tenn. R. Civ. P. 60.02. The trial court denied the motion and the majority of the court of appeals panel affirmed. Writing for the majority, Judge Stafford agreed with Father that Father had asserted a defense which "had the possibility of succeeding at trial" with regard to one of the central issues in the case. However, noting that Father failed to inform both the trial court and mother's counsel that he was changing attorneys again, and noting his delay in doing so (despite his attorney of record's urgent admonitions for him to do otherwise), the majority held that even if his inaction was not willful, the trial court had not abused its discretion "in finding that father's negligence in failure to appear was inexcusable."
Noting that there was no proof that Father was aware of the amended petition, the default motion or the hearing, Judge Kirby dissented on the trial court's finding that Father's failure to appear and defend was willful. Instead, she found that the real cause of such failure was the "inexplicable action" of his counsel, who never apparently informed Father of the amended petition, much less the default motion or hearing. Accordingly, she opined that his Rule 60.02 motion should have been granted.
In re Estate of Brown, No. E2011-00179, 2013 Tenn. LEXIS 308 (Tenn. Mar. 22, 2013).
After Husband and Wife executed contract to make mutual wills and executed those wills, Wife executed new will following Husband’s death. After Wife died, one of her children admitted her second will to Probate, after which Husband’s children filed will contest in chancery court seeking a declaratory judgment that, inter alia, the contract for mutual wills was valid and enforceable. After the trial court found, inter alia, that it had jurisdiction over the claims made by Husband’s children, it also held that the contract for mutual wills was valid and enforceable, and therefore, the will Wife’s son probated was null and void. On appeal, the Tennessee Supreme Court affirmed after the court of appeals had first done so. The supreme court rejected the argument that Husband’s children were required to file a claim against the estate in order to enforce the contract to make mutual wills and that their failure to file anything for more than a year after Wife’s death precluded their action. Based on its decision in Junot v. Estate of Gilliam, 759 S.W.2d 654 (Tenn. 1988), the court held that an action to enforce a contract for mutual wills can be brought not only as a claim against the estate, but also through a will contest (as in this case) and by an action seeking specific performance of the contract through the imposition of a constructive trust on real estate. In his concurring opinion, Chief Justice Wade opined that the holdings in Rogers v. Russell, 733 S.W.2d 79 (Tenn. App. 1986) and In Estate of Cook, No. E2004-00293, 2004WL 3021131 (Tenn. App. Dec. 30, 2004) should be explicitly overruled because they are irreconcilable with the court’s holding.
Am. Express Centurion Bank v. Lowrey, No. E2011-01247, 2013 Tenn. App. LEXIS 176 (Tenn. App. Mar.11, 2013).
After Plaintiff moved for summary judgment, Defendant propounded written discovery to it. When Plaintiff failed to respond to the interrogatories and requests for production, Defendant moved to compel. After the motion was granted, Plaintiff responded to the requests for production, but not the interrogatories. Accordingly, three days later, Defendant moved to dismiss, or for other Tenn. R. Civ. P. 37 sanctions. Despite Plaintiff delivering responses to the interrogatories on the motion hearing date, the trial court granted Defendant’s motion to dismiss. Plaintiff thereafter moved the trial court to alter its decision due to its inadvertent failure to sign the oath on the interrogatory responses, but the trial court denied said motion, asserting that the discovery responses were more than 150 days past due. Relying in large part on its decision in Murray v. Christian Methodist Episcopal Church, 153 S.W.3d 371 (Tenn. App. 2004), the court of appeals reversed, finding that the trial court abused its discretion. In so doing, the appellate court found that Plaintiff’s conduct did not rise to the “contumacious” level found in other cases where dismissal was warranted, and that the delay caused in this case was less than four months from the time discovery was past due to the time of dismissal, which was less of a delay than even in Murray. Because there was proof that Plaintiff was not attempting to be evasive, stubbornly willful, or to stonewall Defendant, it held that dismissal was inappropriate. See also Rodgers v. Noll, No. E2012-0090, 2013 Tenn. App. LEXIS 205 (Tenn. App. Mar. 26, 2013) (likewise holding that dismissal was too “harsh” of a sanction to impose for discovery violations therein, especially since such violations were more attributable to counsel than to Plaintiffs).
Castle v. David Doris Logging, Inc., No. W2012-00917, 2013 Tenn. App. LEXIS 87 (Tenn. App. Feb. 11, 2013).
Shortly after obtaining a jury verdict in the amount of $350,000.00, Plaintiffs fired their second set of attorneys. Said attorneys filed a notice of attorney lien on the same day that Plaintiffs’ new (third) attorney filed a notice of appearance. Plaintiffs’ first attorney also filed an attorney lien and later filed a separate suit to recover his attorney's fees. After Defendants paid the judgment on the jury's verdict into the registry of the trial court clerk pursuant to a consent decree, Plaintiffs’ trial attorneys moved to recover attorney’s fees (in the amount of 40 percent of the recovery) and costs. A day after Plaintiffs moved to release the funds from the clerk’s registry to themselves, the trial court awarded their trial counsel their requested fees and costs. The trial court later denied Plaintiffs’ motion to release the funds. Pursuant to Starks v. Browning, 20 S.W.3d 645 (Tenn. App. 1999), the court of appeals found that trial court did not have subject matter jurisdiction to adjudicate the claim for attorney’s fees. Quoting at length from Starks, the court held that trial counsel had to bring their claim to enforce the attorney's lien in a separate action, as Plaintiffs’ first attorney apparently did. Distinguishing our supreme court's decision in Schmitt v. Smith, 118 S.W.3d 348 (Tenn. 2003), the trial court had no jurisdiction to award the fee because the funds awarded were not "within the control" of the trial court "during the underlying litigation." The court went on to opine that the right of a defendant to pay a judgment into the court (under Tenn. R. Civ. P. 67.01) did not confer jurisdiction on the trial court to consider a post-trial dispute between one party and its own attorney. Noting that there were two unadjudicated attorney’s liens filed, the appellate court affirmed the denial of Plaintiff's motion to release funds from the registry of the trial court.
Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 185 L. Ed. 2d 242, 2013 U.S. LEXIS 1859 (U.S. Feb. 26, 2013).
After the district court dismissed Plaintiff’s Fair Debt Collection Practices Act claim, it awarded some discretionary costs to Defendant pursuant to Fed. R. Civ. P. 54(d)(1). Plaintiff argued that the provision of Act allowing Defendant’s attorney fees for actions brought in bad faith created negative implications against otherwise awarding costs to any defendants. The district court and Tenth Circuit Court of Appeals disagreed, after which the Supreme Court affirmed, 7-2. In his majority opinion, Justice Thomas held that such bad faith provision was not contrary to Rule 54, so it did not displace it and the district court correctly applied the rule to award costs. The dissenting Justices argued that Rule 54’s exception when a statute “provides otherwise” should apply, given the plain text of the Act’s bad faith provision.
State v. NV Sumatra Tobacco Trading Co., No. M2010-01955, 2013 Tenn. LEXIS 335 (Tenn. Mar. 28, 2013).
The issue in this case was the exercise of personal jurisdiction by a Tennessee court over an Indonesian cigarette manufacturer whose cigarettes were sold in this state through marketing efforts of a Florida man who purchased them from a California distributor. After the trial court granted Defendant’s motion for summary judgment because Tennessee possessed no personal jurisdiction over it, the court of appeals reversed and Defendant appealed. In a 3-2 decision, the Tennessee Supreme Court reversed again, finding that Tennessee courts lack jurisdiction pursuant to Tenn. R. Civ. P. 12.02(2). Both Justice Koch’s majority opinion and Chief Justice Wade’s dissent contain detailed surveys of both federal and Tennessee case law on personal jurisdiction over foreign defendants, culminating with the decision in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780, 180 L. Ed. 2d 765, 2011 U.S. LEXIS 4800 (U.S. 2011). While conceding that more than eleven million of Defendant’s cigarettes were sold in Tennessee, the majority noted that Defendant had almost nothing to do with “such sales,” and that such cigarettes coming to Tennessee essentially resulted from the unilateral activity of said Florida man. The majority held that Defendant had no “meaningful contacts” with our state because it simply placed its cigarettes in the “international stream of commerce,” which did not equate to “purposeful availment” of the market here. The dissent opined that the quantity of Defendant’s product sold here, its relationships with distributors, and its contacts with the “open national market” militated towards a finding that Tennessee courts did have personal jurisdiction over Defendant.
Evidence & Civil Procedure
In re Estate of Smallman, 398 S.W.3d 134 (Tenn. App. 2013).
Decedent's surviving spouse appealed from judgment on a verdict finding that:
1. Her marriage to Decedent was not valid;
2. Decedent's lost will should not be admitted to probate;
3. Decedent was not of sound mind when he executed such Will; and
4. Such will was obtained through the use of undue influence.
After the court of appeals affirmed in a split decision, the supreme court reversed, holding that the admission of evidence concerning the surviving spouse's real estate holdings and the execution and substance of her late-mother's will was prejudicial error. Writing for the majority, Justice Lee also found that the surviving spouse had failed to preserve her assertion that Decedent's sons lacked standing to contest her marriage because she failed to raise it in the trial court. In a partial dissent, Justice Koch opined that a plaintiff's standing may be raised for the first time on appeal, as it is not waived simply because it is not properly pled.
Nelson v. Nelson, No. E2012-01316, 2013 Tenn. App. LEXIS 124 (Tenn. App. Feb. 22, 2013), perm. app. filed (Tenn. Apr. 22, 2013).
After Defendant's liability carrier tendered its liability limits to Plaintiff pursuant to T.C.A. § 56-7-1206 (2008), the trial court ordered Plaintiff's UM carriers to arbitration under said statute. Reversing, the court of appeals held that our "UM statutes explicitly state that they apply to [auto] policies delivered, issued for delivery or renewed in [Tennessee]." Since Plaintiff's policies were delivered to him in Texas (where he lived), the appellate court held that substantive arbitration provisions of the statute UM would not apply, since the policies were not Tennessee contracts.
U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 185 L. E. 2d 654, 2013 U.S. LEXIS 3156 (U.S. Apr. 16, 2013).
Respondent settled his claims arising from a motor vehicle accident with a third party for $110,000.00, netting $66,000.00 of the same after deducting his lawyers’ attorney’s fee. Petitioner then demanded reimbursement of the full $66,866.00 in medical bills it had paid for pursuant to Respondent’s benefits plan as an employee of Petitioner. The district court rejected employee’s argument that any reimbursement to employers should be reduced by the same percentage he had to pay his lawyers, which was 40 percent. After the Third Circuit Court of Appeals vacated, the United States Supreme Court vacated as well, holding (in a 5-4 decision) that the common-fund doctrine applied to U.S. Airways’ ERISA Plan, and that it could not take a “free ride” on Respondent’s efforts. Though Justice Kagan’s majority opinion conceded that equitable rules such as unjust enrichment principles cannot override the terms of an ERISA plan in a plan’s ERISA action, such rules may aid in construing the plan. Since Petitioner’s Plan was silent on the allocation of attorney’s fees, the common-fund doctrine governs. In support of its ruling, the majority explained as follows: “Third-party recoveries do not often come free. To get one, an insured must incur lawyer’s fees and expenses. Without cost sharing, the insured free rides on its beneficiary’s efforts – taking the fruits while contributing nothing to the labor.” In a two paragraph dissent, Justice Scalia opined that the majority indicated that the holding that the Plan’s terms are not plain and application of the common-fund doctrine to fill a contractual gap in the same was an issue should not have been addressed because it was not preserved or included in the question presented.
Wilson v. Americare Sys., 397 S.W.3d 552 (Tenn. 2013).
After testimony showed that assisted living facility failed to follow the order of Plaintiffs’ Decedent's physician to administer constipation medication, and that Decedent died of a perforated colon, jury awarded Plaintiffs compensatory damages in the amount of $300,000.00, and punitive damages against Defendant management company in the amount of $5,000,000.00. The court of appeals reversed, asserting that there was no material evidence that staffing deficiencies proximately caused the death of Decedent. A unanimous Tennessee Supreme Court held that insufficient staffing was proven to have led to a deviation from the standard of care, stating that "in an employment setting, if there is too much work required of too few employees, either the work will not get done or the quality of the work will be diminished." The court also remanded Defendant management company's issue on the extent of the punitives back to the court of appeals, since it had not considered the same with its prior ruling.
Shannon v. Roane Medical Ctr., No. E2011-02649, 2013 Tenn. LEXIS 301(Tenn. Spec. Workers’ Comp. App. Panel Mar. 13, 2013).
Claimant surgical technician was on-call and returning home after assisting with an emergency surgery when she was injured in an automobile accident. In considering an issue of first impression, the workers' compensation appeals panel held that the following factors should be considered when determining whether the coming and going rule applies to an employee:
(1) whether the employee is paid for time spent on-call either in the form of an hourly wage or increased annual salary; (2) the nature of any restrictions imposed by the employer during the employee's on-call hours; (3) the extent to which the employer benefits from the on-call system; and (4) the extent to which the on-call system requires additional travel that subjects the employee to increased risk compared to an ordinary commuter.
In reviewing the facts of this case, Chief Justice Wade, found it significant that Claimant was paid for her time on-call and restricted by Employer from using alcohol, or being away from her pager or telephone, or being more than half an hour from the facility of Employer. The court also found that the call system provided significant benefits to Employer and subjected Claimant to increased risk, and therefore, reversed the trial court's denial of benefits.
Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114 (Tenn. 2013).
Almost two years after settling his claim and having the same approved by the Department of Labor and Workforce Development Workers' Compensation Specialist, Claimant hired new counsel and petitioned the trial court to set aside the settlement because the settlement's SD-1 form incorrectly reflected that he had returned to work and his permanent partial disability was therefore capped at 1.5 times his permanent impairment rating. After the trial court held that under Tenn. R. Civ. P. 60.02(5) (as well as the court's "inherent authority") that Claimant could either request another BRC or file a claim for benefits, the Special Workers' Compensation Appeals Panel dismissed Employer's appeal, holding that T.C.A. § 50-6-244(d) (2008 & Supp. 2012) meant that the incomplete SD-1 form made the Department's approval of the settlement non-final. Therefore, it remanded the case back to the Department of Labor to exhaust the BRC process. The Tennessee Supreme Court reversed, holding that approval of the settlement by the Department of Labor meant that the SD-1 form was "fully completed, and the courts therefore have no subject matter jurisdiction to address this case.” The court also held that the mediated settlement agreement clearly exhausted the BRC process normally required, and further held that Claimant had failed to establish the necessary criteria to obtain relief from the approval of his settlement under Rule 60.02 or the trial court’s inherent authority.
Vandall v. Aurora Healthcare, LLC, No. W2011-02042, 2013 Tenn. LEXIS 426 (Tenn. Apr. 24, 2013).
Plaintiff nurse testified that she tripped and fell when the ball of her right foot “stuck” to the floor at work. Though Plaintiff testified she knew something on the floor caused her fall, she admitted she could only speculate as to “what, if any, substance was on the floor.” After the trial court awarded benefits, Employer appealed, asserting that the fall was idiopathic. The majority of the Tennessee Supreme Court affirmed, finding that it must defer to the trial court’s accreditation of Plaintiff’s testimony at trial, despite the fact that no one had found any substance or irregularity in the floor where Plaintiff fell. In his dissent, Justice Koch noted that Plaintiff admitted that she thought the “Crocs” she was wearing when she fell were too big for her feet, and that the same were against hospital policy. He further opined that, even deferring to the trial court’s credibility determinations, Plaintiff still failed to prove that an “employment hazard” caused her to fall.