               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                        Assigned on Briefs February 23, 2015

          VICTOR D. MCMILLER, SR. v. STATE OF TENNESSEE

           Appeal from the Claims Commission for the State of Tennessee
               No. T20110052     William O. Shults, Commissioner


               No. E2014-01006-COA-R3-CV-FILED-APRIL 27, 2015


This appeal arises from inmate Victor D. McMiller, Sr.‟s (“Claimant”) lawsuit against the
State of Tennessee (“the State”) for negligence. According to Claimant, he was injured
when he fell off a bunk bed, and, given his medical status, the State never should have
required him to use a top bunk as it did. The Tennessee Claims Commission found that
the State was predominantly at fault in the incident but that Claimant failed to prove he
actually was injured by the fall, thus defeating the negligence claim. Claimant appeals.
We affirm the judgment of the Claims Commission.

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

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Victor D. McMiller, Sr., pro se appellant.

Herbert H. Slatery, III, Attorney General and Reporter; Andreé Blumstein, Solicitor
General; and, Pamela S. Lorch, Senior Counsel, Office of the Attorney General, for the
appellee, the State of Tennessee.
                                 MEMORANDUM OPINION1

                                            Background

              Claimant, an inmate of the Tennessee Department of Correction, filed a
complaint in the Claims Commission alleging negligence on the part of the State relating
to Claimant‟s fall from a bunk bed. On July 8, 2010, Claimant fell while trying to climb
to his top bunk. According to Claimant, the State was negligent in assigning him to a top
bunk given his restricted health assessment classification.

              This matter was tried in November 2013. Numerous witnesses testified
regarding how Claimant came to be assigned a top bunk. The State on appeal, however,
does not dispute the Claims Commission‟s findings regarding fault, and a discussion of
fault is not necessary to our disposition of this appeal. We, therefore, focus on the
medical evidence concerning damages as presented to the Claims Commission.

              The Claims Commission considered the deposition testimony of Dr. Dane
Lee. Dr. Lee treated Claimant. Dr. Lee testified that x-rays of Claimant did not reveal
injuries necessarily resulting from a fall. Rather, Dr. Lee testified that Claimant suffered
from chronic arthritic and osteoarthritic issues. Dr. Lee stated that Claimant had a
congenital spinal condition. Claimant has a long history of degenerative disc disease
with lumbar pain dating back to the early 1990s. In Dr. Lee‟s opinion, none of
Claimant‟s arm weakness or numbness resulted from a fall. Dr. Lee stated that he could
not agree with a reasonable degree of medical certainty that Claimant‟s July 2010 fall
caused him to require back and neck surgery in July and November 2011. Indeed, Dr.
Lee could not attribute any significant injury from the fall to Claimant within a
reasonable degree of medical certainty. Dr. Lee also testified that Claimant‟s need for
pain medication would exist even without the fall given his degenerative disc and
stenosis conditions. Claimant presented no contrary medical proof.

              In April 2014, the Claims Commission entered its final judgment. The
Claims Commission found the State 55% at fault to Claimant‟s 45% for Claimant‟s fall.
However, the Claims Commission also found that Claimant had failed to prove that he
suffered any injury or damages from the fall. The Claims Commission stated in its final
judgment, in part:


1
 Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is decided by
memorandum opinion it shall be designated „MEMORANDUM OPINION,‟ shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.”
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      [E]ven though the State‟s negligence exceeded by a small degree that of the
      Claimant, we cannot find that Mr. McMiller has established by a
      preponderance of the evidence the causal connection between his fall of
      July 8, 2010, and the conditions which have resulted in two separate
      surgeries and the current condition of Claimant‟s cervical and lumbar spine.

Claimant timely appealed to this Court.

                                      Discussion

              Claimant raises over 20 issues on appeal. Respectfully, however, these
issues as presented are not meaningful for purposes of appellate review. We restate and
consolidate Claimant‟s numerous issues into the following single and dispositive issue:
whether the Claims Commission erred in finding that Claimant failed to prove by a
preponderance of the evidence that he was injured by the fall from his bunk bed.

             Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).

             As our Supreme Court has explained regarding negligence:

      In order to establish a prima facie claim of negligence, basically defined as
      the failure to exercise reasonable care, a plaintiff must establish the
      following essential elements: “(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.”

Morrison v. Allen, 338 S.W.3d 417, 437 (Tenn. 2011) (quoting Giggers v. Memphis
Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009)).

             The evidence in the record on appeal reflects that Claimant suffered from
longstanding medical problems related to his spine. The evidence contained in the
record, including Dr. Lee‟s testimony, does not preponderate against the Claims
Commission‟s finding that Claimant suffered no distinct injury or damages from his fall
from the bunk bed. Rather, it appears, as found by the Claims Commission, that

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Claimant suffers chronic health problems apart from and unrelated to any fall. No
medical proof contradicting Dr. Lee‟s testimony was presented at trial.

              While we are mindful of the inherent hardships the incarcerated Claimant
likely faced in bringing his lawsuit, there simply must be an injury or loss to sustain a
negligence claim. Claimant failed to prove he suffered an injury or loss as a result of the
fall. Therefore, regardless of the State‟s predominant fault in the fall, the absence of an
essential element—injury or loss—serves to defeat Claimant‟s negligence claim against
the State. This being so, we affirm the judgment of the Claims Commission.

                                       Conclusion

              The judgment of the Claims Commission is affirmed, and this cause is
remanded to the Claims Commission for collection of the costs below. The costs on
appeal are assessed against the Appellant, Victor D. McMiller, Sr., and his surety, if any.

                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




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