IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT JACKSON
_______________________________________________________
)
ERMA HARDESTY and ) Shelby Law
JIM HARDESTY, ) 33600 T.D.
)
Plaintiffs/Appellants. )
)
VS. ) C. A. NO. 02A01-9510-CV-00235
)
SERVICE MERCHANDISE
COMPANY, INC.,
)
) FILED
) Feb. 5, 1997
Defendant/Appellee. )
) Cecil Crowson, Jr.
________________________________________________________________________
Appellate Court Clerk
SEPARATE CONCURRING OPINION
The majority holds that the plaintiff cannot establish constructive notice. I am
constrained to agree. However, I invite our Supreme Court to revisit this area of law.
The plaintiff entered Service Merchandise. She tripped over an object
protruding into the aisle. She sustained a fractured hip, was hospitalized, and underwent
surgery.
For plaintiff to prevail, she must demonstrate that either: (1) the dangerous
condition was created by the store owner or its agents; or (2) the store owner had actual
or constructive notice of the dangerous condition.
It is illogical to surmise that an employee will confess: "Yes, I created the
dangerous condition that injured the plaintiff." The employee may not be aware that he or
she created the dangerous condition. Moreover, the fear of becoming unemployed is a
logical impediment to plaintiff's development of proof.
The rules place an insurmountable burden on the innocent injured plaintiff. Had
Service Merchandise created this dangerous condition, how would this Court have
plaintiff carry her burden? The store or its agents are in sole possession of the proof
plaintiff requires to move forward. Curiously, however, we place the burden on the party
without control of the proof to bear the burden of moving forward.
I find it even more disconcerting that the rule we have developed encourages or
promotes ignorance. Store owners may circumvent liability by simply remaining
unaware. They are not held accountable for injuries caused by dangerous conditions
unless the conditions existed so long that they should have known.
From a purely economic perspective, store owners are in a much better
possession to bear the loss. Owners invite consumers upon their premises. They derive
economic benefit from patron visits. They, therefore, should be encouraged to maintain a
safe environment for their customers. I am not suggesting that store owners be insurers of
their property. I am suggesting, however, that the law should encourage a store owner to
inspect and maintain safe premises.
I think the law would be better served by charging store owners with
constructive notice. Owners are in possession of the proof and in a much better position
to rebut. Quite easily, the employer could offer proof that the aisles are checked hourly.
An employee could then simply testify that he or she inspected or walked down the aisle
just prior to plaintiff's injury and did not notice an object protruding into the aisle.
If the employer cannot rebut constructive notice, he or she then can argue
apportionment of liability. If the jury finds the plaintiff over 50% or more at fault, the
plaintiff bears the loss.
A common sense deduction is that employees creating dangerous conditions
which ultimately cause injuries are not likely to come forward. A plaintiff's sole
remaining viable option, in reality under the current law, is locating a patron who viewed
the dangerous condition some time prior to the accident. Does the Court expect the
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injured victim to publish in a newspaper "Anyone seeing a bed rail protruding into an
aisle at Service Merchandise on . . ."?
We need to study this impractical burden. We continue striking injured patrons'
claims without providing any guidance as to how the innocent injured victim may
overcome the harsh burden of our rules. It is no better to have a rule than to have a rule
which promotes ignorance and serves no end.
______________________________
PAUL G. SUMMERS, Judge
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