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
______________________________________________________________________________
From the Circuit Court of Shelby County at Memphis.
Honorable Robert A. Lanier, Judge
Hal Gerber, Memphis, Tennessee
Lewie R. Polk, III, Memphis, Tennessee
And
Shawn Ellis,
WILHOIT EDUMUNDSON TERANDO & HOPKINS, Poplar Bluff, Missouri
Attorneys for Plantiffs/Appellants.
Gail O. Mathes, Memphis, Tennessee
Attorney for Defendant/Appellee.
OPINION FILED:
AFFIRMED AND REMANDED
FARMER, J.
LILLARD, J. : (Concurs)
SUMMERS, Sp. J. : (Concurs by Separate Opinion)
This appeal is taken from the trial court’s order of June 7, 1995, granting summary
judgment in favor of Defendant Service Merchandise Company, Inc. (hereinafter, “Service
Merchandise”). Specifically, the trial court found that there was no proof of a dangerous condition
created by Service Merchandise and no proof that Service Merchandise had either actual or
constructive notice that a dangerous condition existed. Upon consideration of the record before us,
the trial court’s order is affirmed.
FACTS
Erma Hardesty (hereinafter, “Mrs. Hardesty” or “Hardesty”), traveled from her
residence in Missouri to Memphis with her daughter and grandson. While at the Mall of Memphis,
Mrs. Hardesty, her daughter and grandson went shopping at the Service Merchandise store. They
entered the store in search of the toy department and, after receiving directions, the party proceeded
down one of the aisles. Mrs. Hardesty had traveled a few feet down the aisle when she fell forward
and landed on her left hip. As Mrs. Hardesty testified at trial, “All at once I was just falling and I
didn’t know why.” As a result of the fall, Mrs. Hardesty sustained a fractured hip which required
surgery and hospitalization.
Mrs. Hardesty filed suit to recover for her injuries in which she alleged negligence
on the part of Service Merchandise in failing to keep its store free of dangerous conditions. Her
husband sought damages for loss of consortium. The jury rendered a verdict attributing 95% of the
fault for the accident in question to Service Merchandise and 5% to Mrs. Hardesty. The jury
awarded $250,000 in damages to Mrs. Hardesty and $150,000 in damages to her husband.
Service Merchandise filed a motion for directed verdict and later filed a motion for
judgment notwithstanding the verdict or, in the alternative, for new trial. The trial court found it
impossible to determine remittur because of the excessiveness of the judgment and granted the
motion for new trial. Service Merchandise filed a motion for new trial by a different judge. The
motion was granted, and the cause transferred to Division 7 of the Shelby County Circuit Court on
November 23, 1994. Service Merchandise then filed a motion for summary judgment which was
granted.
ISSUES ON APPEAL
Appellants’ issues on appeal are as follows:
1. Did the original trial court err in granting Defendant’s
motion for new trial based only on its finding that the damages
awarded to Plaintiffs were excessive?
2. After transfer, did the second trial court err in granting
defendant’s motion for [summary] judgment?
Appellee frames the issues as:
1. The trial court properly ordered a new trial on the basis that
the damages awarded by the jury were excessive.
A. The trial court, as thirteenth juror, was
required to grant Defendant’s motion for new trial.
B. The evidence in this cause was inadequate
to support the jury award with respect to Erma
Hardesty’s claim and the claim of Jim Hardesty, her
husband, for loss of consortium.
C. The excessiveness of the damages awarded
by the jury justified the court’s finding that the jury
was motivated by passion and prejudice.
2. Defendant was entitled to judgment as a matter of law on
the grounds that Plaintiff had no evidence of notice, either
constructive or actual.
A. The original trial court erred in denying
Defendant’s motion for directed verdict and
[judgment] notwithstanding the verdict.
B. The trial court on transfer properly granted
Defendant’s motion for summary judgment in this
cause.
ARGUMENT
In considering this appeal, the Court first turns its attention to the issue of whether
the trial court properly granted Service Merchandise’s motion for a new trial. The order granting
Defendant’s motion for new trial stated:
This matter comes before the Court on DEFENDANT’S MOTION
TO SET ASIDE THE VERDICT, FOR NEW TRIAL, OR IN THE
ALTERNATIVE, FOR REMITTITUR PURSUANT TO THE
PROVISIONS OF RULE 59 OF THE TENNESSEE RULES OF
CIVIL PROCEDURE, from all of which the Court determines that
the amount of the judgment awarded to Plaintiffs was so excessive
that the Court was unable to determine a reasonable remittitur under
the circumstances of this case. Therefore, this Court grants
Defendant’s Rule 59 Motion for a New Trial.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED
that Defendant Service Merchandise’s Motion for a New Trial be and
is hereby granted.
The trial court acts as thirteenth juror and, in cases where the trial court deems it
appropriate, it may set aside a jury’s verdict and order a new trial. James E. Strates Shows, Inc. v.
Jakobik, 554 S.W.2d 613, 616 (Tenn. 1977); Sherlin v. Robinson, 551 S.W.2d 700 (Tenn. Ct. App.
1976). Therefore, if the trial court disagrees with the amount of the verdict, finding it to be either
excessive or inadequate, the trial court may set aside that judgment. Foster v. Amcom Int’l., Inc.,
621 S.W.2d 142, 148 (Tenn. 1981). As the Supreme Court noted in Foster, additurs and remittiturs
were designed to correct the excessiveness or inadequacy of a jury’s verdict. However, the trial
court should award a new trial rather than suggest a remittitur or additur if the adjusted amount of
the judgment would bear no relation to the jury verdict. Id. at 148.
In Guess v. Maury, 726 S.W.2d 906 (Tenn. App. 1986), this Court addressed a
situation similar to the case at bar. In that case, the jury returned a verdict for $950,000 for one
plaintiff and for $83,000 for another plaintiff. Id. at 907. The trial court suggested a remittitur of
the damage awards to $235,000 and $25,000, respectively. Id. at 911. On appeal, this Court noted
that a remittitur which amounted to a 75% reduction in the amount of the jury award was excessive
in that it destroyed the jury’s verdict. Therefore, we found that the trial court should have granted
a new trial. Id. at 913.
In the instant case, the trial court determined “that the amount of the judgment . . .
was so excessive” that the trial court was unable to determine a reasonable remittitur. Therefore,
rather than order a remittitur, the trial court ordered a new trial. Because the trial court, acting in its
role as thirteenth juror, would not have accepted the jury’s verdict and clearly expressed this intent,
we find that the trial court properly awarded Defendant a new trial.
Having determined that the trial court did not err in granting Defendant’s motion for
new trial, we now address the issue of whether Service Merchandise had notice of the allegedly
dangerous condition. We find that Hardesty failed to establish that Service Merchandise had either
actual or constructive notice of an unsafe or unreasonably dangerous condition on its premises at the
time of the injury. Merchants owe customers a duty “to exercise reasonable care to keep the
premises in a reasonably safe and suitable condition, including the duty of removing or warning
against a dangerous condition traceable to persons for whom the proprietor is not responsible . . . if
the circumstances of time and place are such that by the exercise of reasonable care the proprietor
should have become aware of such conditions.” Self v. Wal-Mart Stores, Inc., 885 F.2d 336, 338
(6th Cir. 1989); Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986), quoting
Allison v. Blount Nat’l Bank, 390 S.W.2d 716, 718-19 (Tenn. App. 1965). A merchant is not an
insurer of the safety of its customers, and it is not to be presumed that the proprietor of a store like
Service Merchandise is instantly aware of all that transpires within its establishment. Self, 885 F.2d
at 339; Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn. App. 1980); Patterson v. Kroger Co.,
389 S.W.2d 283 (Tenn. App. 1964).
In order to prevail against the owner or operator of a premises for negligence in
allowing a dangerous or defective condition to exist on the premises, the plaintiff must establish (1)
that the defendant created the condition or (2) that the defendant had actual or constructive notice
of the condition prior to plaintiff’s injury. Self v. Wal-Mart Stores, Inc., 885 F.2d 336, 338 (6th Cir.
1989); Chambliss v. Shoney’s, Inc., 742 S.W.2d 271, 273 (Tenn. App. 1987); Benson v. H.G. Hill
Stores, Inc., 699 S.W.2d 560, 563 (Tenn. App. 1985); Jones v. Zayre, Inc., 600 S.W.2d 730, 732
(Tenn. App. 1980); Paradiso v. Kroger Co., 499 S.W.2d 78 (Tenn. App. 1973). Plaintiffs allege
that Mrs. Hardesty tripped over a bed rail that was on display at Defendant’s store. Assuming,
arguendo, that the bed rail was the offending object, there has been no proof as to who placed the
bed rail in the position it was in when Mrs. Hardesty fell over it. No evidence was introduced to
show that Service Merchandise either created the condition or had actual notice thereof. Mrs.
Hardesty testified,
Q. And you didn’t know whether a Service Merchandise employee
pulled it out in the aisle or a customer had just pulled it out right
before you were walking down there, did you, ma’am?
A. No, I don’t know . . . .
Mrs. Hardesty’s daughter, Shelby Vincent, was with her mother at the time of the accident. She
testified as follows:
Q. And you don’t know who put that bed rail in that position, do you,
ma’am?
A. No.
In this cause, Plaintiffs have not shown that Defendant either placed the bed rail in
the allegedly dangerous position or had actual notice of the allegedly dangerous condition on its
premises. Therefore, in order to prevail, Plaintiff must demonstrate that Service Merchandise had
constructive notice of the allegedly dangerous condition. As a general rule, constructive knowledge
cannot be established without some showing of the length of time the dangerous condition had
existed. Self, 885 F.2d at 338. As noted by this Court in Jones v. Zayre, Inc., 600 S.W.2d 730, 732
(Tenn. App. 1980), “[i]f liability is to be predicated on constructive knowledge by the Defendant,
the proof must show the dangerous or defective condition existed for such length of time that the
Defendant knew, or in the exercise of ordinary care should have known, of its existence.” See also,
Worsham v. Pilot Oil Corp., 728 S.W.2d 19, 20 (Tenn. App. 1987); Allison v. Blount Nat’l Bank,
390 S.W.2d 716 (Tenn. App. 1965) . Mrs. Hardesty testified at trial regarding this issue as follows:
Q. Mrs. Hardesty, you didn’t know how long that rail had been in the
aisle prior to walking up to it, did you, ma’am?
A. Of course not. I didn’t see it when I fell.
In her previous deposition, Mrs. Hardesty testified that she had no idea how long the rail
had been protruding. She stated:
Q. You have no idea how long the rail had been sticking out?
A. No, I don’t.
Similarly, Shelby Vincent offered the following testimony at trial:
Q. And insofar as how long that bed rail had been in that position,
you don’t know that, do you, ma’am?
A. No.
In fact, when questioned at trial on this point by Plaintiffs’ counsel, Mrs. Vincent testified:
Q. Truthfully, you don’t know how long that rail had been there?
A. No.
Plaintiffs have predicated their claim of constructive notice on Mrs. Vincent’s
observation that the bed rail remained in the aisle after the accident occurred. Mrs. Vincent testified
that the bed rail remained in the aisle for over ten minutes after the accident and that when she
returned to the store the next day, she found the bed rail protruding into the aisle in the same location
as it had been the day before. While her testimony that the bed rail was protruding into the aisle for
some 24 hours after the accident would be persuasive as to notice for a subsequent accident, we do
not find that it has any bearing on the facts surrounding the instant cause.
Plaintiffs base their claim on circumstantial evidence which they assert supports any
one of a number of inferences which satisfy their burden of proof. Plaintiffs rely upon Benson v.
H.G. Hill Stores, Inc., 699 S.W.2d 560 (Tenn. App. 1985), in which this Court held that a jury could
draw inferences from the facts. In that case, the jury was permitted to infer that wet wax was a
dangerous condition not ordinarily found on the floor of trade establishments without the store
warning customers of the danger. Id. at 563. Further, the Court held that the jury could infer that
the wax was placed or spilled there by a store employee. Id.
We do not find the type of defective condition alleged here to be appropriate for the
jury’s drawing of inferences that Service Merchandise had notice of the allegedly dangerous
condition prior to the accident. In Benson, the Court found it to be salient that there were two
employees in the immediate vicinity of the wet wax at the time of the accident. The employees
either observed or should have observed the spillage of the wax, thereby producing notice to their
employer. In the instant case, however, there were neither customers nor employees near the scene
of the accident. Mrs. Vincent stated at trial:
Q. Now in this few minutes that you were in the store you saw no
customers in the area where your mother fell, correct?
A. Yes.
Q. And there were no Service Merchandise employees who were
standing around looking at the merchandise in that area, were there?
A. No.
Furthermore, Mary Summers, a Service Merchandise employee for 11 years, testified that all Service
Merchandise employees are trained to look out for and to set right merchandise that is found to be
out of place.
Where there is a complete absence of proof as to when and how the dangerous
condition came about, it would be improper to permit the jury to speculate on these vital elements.
Ogle v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45, 47 (Tenn. App. 1995); Paradiso v. Kroger Co.,
499 S.W.2d 78 (Tenn. App. 1973); Chambliss v. Shoney’s, Inc., 742 S.W.2d 271 (Tenn. App.
1987). A plaintiff must submit proof as to how long the allegedly dangerous condition existed prior
to the accident. Jones v. Zayre, 600 S.W.2d 730, 732 (Tenn. 1980); Worsham v. Pilot Oil Corp.,
728 S.W.2d 19, 20 (Tenn. App. 1987). Plaintiffs presented no proof that Defendant created the
allegedly dangerous condition. Furthermore, there has been no proof that Defendant had either
actual or constructive knowledge of the condition prior to Mrs. Hardesty’s fall; Hardesty
acknowledged that she did not know when the offending bed rail had been pulled out.
In order to establish a prima facie case of negligence for a slip-and-fall case, the law
requires that the defendant create the dangerous condition or know about it prior to the accident in
question. If a plaintiff cannot prove that defendant either created the condition or had actual
knowledge of it, the plaintiff must prove, in order to prevail, that defendant had constructive
knowledge of the hazard. In order to establish constructive knowledge, the plaintiff must present
proof as to the length of time that the dangerous condition existed. Self, at 339. In this case,
Plaintiffs presented no proof as to how long before the accident the bed rail had protruded into the
aisle. In failing to do so, Plaintiffs failed to establish the essential element of constructive
knowledge, and consequently, Plaintiffs cannot establish a prima facie case of negligence.
Therefore, the original trial court erred in not granting Defendant’s motion for directed verdict.
On October 4, 1994, the original trial court granted Defendant’s motion for a new
trial. On November 23, 1994, the cause was transferred to Shelby County Circuit Court, Division
7 where a different court had the opportunity to evaluate the issue of whether Plaintiffs had provided
adequate proof of an unsafe or unreasonably dangerous condition prior to Mrs. Hardesty’s fall.
Service Merchandise moved for and was granted summary judgment. In support of its motion,
Defendant filed a copy of the entire trial transcript from the original proceedings. Plaintiffs offered
no additional proof by affidavits or otherwise and relied entirely upon the trial transcript. After
reviewing the transcript, motions and responses of the parties, and hearing oral argument on this
issue, the trial court granted Service Merchandise’s motion for summary judgment.
No presumption of correctness attaches to decisions granting summary judgment
because they involve only questions of law. Thus, on appeal, we must make a fresh determination
concerning whether the requirements of Rule 56 T.R.C.P. have been met. Cowden v. Sovran
Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).
We begin our analysis of the issue of summary judgment by noting that a trial court
should grant a motion for summary judgment only if the movant demonstrates that there are no
genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
Rule 56.03 T.R.C.P.; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). The party moving for
summary judgment bears the burden of demonstrating that no genuine issues of material fact exist.
Byrd, 847 S.W.2d at 210. In Byrd, the Tennessee Supreme Court stated:
Once it is shown by the moving party that there is no genuine issue
of material fact, the nonmoving party must then demonstrate, by
affidavits or discovery materials, that there is a genuine, material fact
dispute to warrant a trial. (Citations omitted.) In this regard, Rule
56.05 provides that the nonmoving party cannot simply rely upon his
pleadings but must set forth specific facts showing that there is a
genuine issue of material fact for trial.
Id. at 211, (emphasis in original).
Considering the evidence in the light most favorable to the Plaintiffs, we are left to
determine whether Service Merchandise was entitled to summary judgment as a matter of law. As
heretofore stated, no claim for negligence in regard to a slip-and-fall injury can succeed in the
absence of plaintiffs’ showing either that the defendant created the dangerous condition or that the
defendant had actual or constructive knowledge of said condition. Self v. Wal-Mart Stores, Inc.,
885 F.2d 336, 338 (6th Cir. 1989); Chambliss v. Shoney’s, Inc., 742 S.W.2d 271, 273 (Tenn. App.
1987); Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn. App. 1985); Jones v. Zayre,
Inc., 600 S.W.2d 730, 732 (Tenn. App. 1980); Paradiso v. Kroger Co., 499 S.W.2d 78 (Tenn. App.
1973).
In addressing the motion for summary judgment, the court must consider the evidence
in the same manner as a motion for directed verdict made at the close of plaintiffs’ proof. Therefore,
the “court must take the strongest legitimate view of the evidence in favor of the nonmoving party,
allow all reasonable inferences in favor of that party, and discard all countervailing evidence.” Byrd
at 210-11. The proof in the instant case is insufficient for Plaintiffs to establish a cause of action and
to carry their burden of proof. Mrs. Hardesty has presented no proof that Service Merchandise
created the dangerous condition or had actual knowledge thereof. Under the Self analysis, when a
plaintiff cannot prove that a defendant either created a dangerous condition or had actual notice
thereof, the plaintiff must demonstrate the length of time the condition existed prior to the accident,
in order to establish the defendant’s constructive knowledge. Self, 885 F.2d at 339.
Plaintiffs have been unable to show that Defendant created the dangerous condition
by placing the bed rail in the aisle. Both Mrs. Hardesty and her daughter, Shelby Vincent, admitted
that they did not know who placed the bed rail in the position it was in when Mrs. Hardesty fell over
it. Similarly, Plaintiffs have not produced any evidence to suggest that Defendant had actual
knowledge of the condition prior to the accident nor have they shown how long the bed rail had been
in the aisle. In fact, both Mrs. Hardesty and Mrs. Vincent admitted at trial and in their depositions
that they did not know how long the bed rail had been in the aisle.
It appears that Plaintiffs are unable to establish a prima facie case of negligence for
Mrs. Hardesty’s injuries because they are unable to offer any proof that Defendant either knew of
or had constructive knowledge of the allegedly dangerous condition. Accordingly, we find that the
trial court was correct in granting Defendant’s motion for summary judgment. The trial court’s
decision is affirmed, and the appeal dismissed. Costs on appeal are taxed to Appellants for which
execution may issue if necessary.
_______________________________
FARMER, J.
______________________________
LILLARD, J. (Concurs)
______________________________
SUMMERS, Sp. J. (Concurs by
Separate Opinion)
Hardesty v. SERVICE MERCHANDISE CO. INC.
Combined Opinion