# FILED
December 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
MARY ANN DOWDY, Parent and ) Next of Kin of STEVE DOW DY, ) Dec’d., and MARY ANN DOWDY, ) Individually; CATHY E. DOWDY, ) Parent and Next of Kin of ARGUSTA ) DOWDY, Dec’d., and C ATHY E. ) DOWDY, Individually and ) EMMA DOWDY, ) ) Plaintiffs/Appellees, ) Shelby Circuit No. 23930 T.D. ) VS. ) Appeal No . 02A01-9709-CV- 00237 ) MYLES AND ARLENE WILSON, ) ) Defendants/Appellants. )
APPEAL FROM

THE CIRCUI T COURT OF SH ELBY COUN TY AT MEMPHIS, TENNESSEE THE HONORABLE JAMES F. R USSELL, JUDGE

RICHARD McFALL Memphis, Tennessee Attorney for Appellant
MARSHALL L. GERBER Memphis, Tennessee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J. Defendants-Appellants, Myles and Arlene Wilson, appeal the ruling of the trial court2

which awarde

d Plaintiff-Appe llee Ma ry Dow dy, as n ext of k

in of the dece ased, St eve Dowdy, and Plaintiff-Appellee Cathy Dowdy, as n ext ofkin of the deceased, Argusta Dowdy, damages for the w rongful deaths of their childr en.

I. Factual and Procedur al History

Plainti ff, M ary Ann Dowd y, is the natural mother and next of kin of the deceased, Steve Dowdy, who w

as ten months ol d at the time of his de ath. Pla intiff , Cathy E. D owdy, is the natural mother and next of ki n of the deceased, Argusta Dow dy, who was

three years old at the tim e of his d eath. Pl aintiff , Emma Do wdy, is the m other of the plai ntiffs Mary and Cathy Dowdy. The Defendants, My les and Ar lene Wils on, were the owners of a d uplex located at 1673-7 5 Ash Street in Memphis. Mar y Dowdy liv

ed in the duplex with her son (Steve Dowdy), her sister (Cathy Dowdy) and her sister’s son (Argusta Dowdy

). Mary and Cathy Dowdy each had other c hildren than the ones who perished in the fir e, who were the siblings of the deceased chi ldren.
On or about February 6, 1988 , a fire occurred onthe 1675 Ash side of the duplex resulting in the deaths of Steve and Arg usta Dowdy. E mma Dowdy attempted to enter the burning dwelling

to save the lives of her grandchildren.

The Dowdy sister s, as pare nts and n ext of kin, sued Defendant property owner s for the wrongful death of their two minor children. In their individual c apacities t he Dowdy sisters sued for damages resulting from their own personal i njuries allegedly received from the fire. The grandmother of the deceased c hildren joined in the suit in her individu al capacity to recover

damages for personal injuri es allegedly recei ved in the fire.

The case was tried to the Court without a jury. At trial, the fire inspector stated that the cause of the fire was an open burning candle which the Dowdys had lit which caught the curtains on fire and subsequently burned the home. The trial court ruled that Mary and Cathy Dowdy were negligent by

burning the candle and then going to bed without putting3

out the candle and that their negl igence was a prox imate cause of thedeath of the minors.

The fire i nvestiga tor also testified that duri ng the course of his inve stigation he sea rched fo r a fire

detecto r but co uld find none. He

testifi ed he loo ked for e videnc e of a smoke detector, including mounting brackets, screws and the like but found none . He also found no evidence of a smoke detector o n the other side of the duplex. Mary and Cathy Dowdy testified t h at there was no smok e detect or. However , the owne r of the d uplex, MylesWilson, testified he had smoke detectors installed in both of his duplexes in September

of 1987, prior to

the Dowdys moving

in. Mallory Monta

gue identified the smoke detector installation contract for the subject duplex that burned and further testified that he persona lly install ed a smok e detect or in the s ubject du plex.

The trial court found that there were no smoke detectors in the subjec t duplex and, as such, Appellants were g uilty of negligence per se. The trial court further found that the failure to provide a smoke detector was a proximate cause of the death of the minor children. The trial court ruled that Mary Dowdy and Cathy Dowdy were negligent which w

as equal to or greater than 50% ( Mary 35%, Cathy 45%), and they were de nied any individual recovery. However, Mary Dowdy and Cathy Dowdy, as non-party plaintif fs in their represen tative capacity, were aw arded 20% of the damages for the wrongful deaths of their children , in the am ounts of $14,060 .00 and $ 13,654. 00 respe ctively.

II. Presence of Smoke Detector

The issue of the presence of a smoke detector on the premises was hotly contested at trial. Appellees Mary and Cathy Dowdy bothtestified that there was no smoke detector on the premises. Appellant My les Wilson testified that

he and his wife had smoke detectors installed in each of their duplexes i n August and September of 1987. Myles Wilson further stated that the smoke detector at 1673 Ash had been tested when Mary Dowdy moved into the du plex and that it was working properly. Myles Wilson further testified that Ma llory Montague installed the smoke detector on the premises.4

Mallory Monta gue testified that he installed s moke detectors in all the dupl exes owned by Mr. Wilson. He ide n tified the smoke detector instal lation contract which listed 1673 Ash as one of the premises on w hich a smoke detector was to be installed.
Gerald Alsup, fire investigator for the Memphis Fire Department was assigned to investigate

the fire in this case f or possible arson and because there wer e fatalities involve d. He te stified that during the cour se of his investigatio n, he made a point of searching for a smoke detector, b ut could fin d none. He looked for evidence of the existence of a smoke dete ctor that perhaps had been moved but could find n o such evidence. He test ified th at he fu rther searched for mounting brackets, screws, components, and the like, but could find no remnants anywhere. Gerald Alsup went on to testify thathe then proceeded to check the other side of the duplex at the 1673 addr ess for the same and found no smoke detector there either. Likewise, he found no evidence that one had ever been installed in that resi dence.

The trial court made

a finding of fact that the premises had not been equipped with a smoke detector. R ule 13(d) of the Tennessee Rules of Appellate Proc edure states as follows: Unless otherwise required by statute, review of findings of fact

bythe trial c ourt in civi l actions shall be d e novo upon t he rec ord of the trial court, accompanied b y a presumption of correctnes s of t he finding, unless the preponder ance of the evidence is otherwi se. Addition ally, because of th e dispute amo ng the witnesses, th e trial judge had to assess the credibility of the

parties. Such findings on review must be regarded as conclusive unless other real evidence compels a contrary conclusi on. McReynolds v. Cherokee Ins. Co , 815 S.W.2d 208, 210 (Tenn. Ct. App. 1991); Airline Constr., Inc. v. Barr , 807 S.W.2d 247, 264 (Tenn. Ct. App. 1990).
Upon assessing the credibi lity of the parties, the trial judge chose to ac cept the test imony

of the fire investigator. While there was other real evidence in the form of a contract for the installation of a smoke detecto r at the pr emises, this court does not believe5

that such evidence compels a co nt rary conclusion. After hearing the testimony of the installer and all the other witnes ses, the trial judge w

as free to conclude that although the contr act calle d for the installation of the smoke de tector, it was neve r actually install ed. Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be giv

en oral testimony are inv olved, considerable deferenc e must be accorded those circumstances on review. Humphrey v. Davi d Witherspoon , 734 S.W.2d 315 (Tenn. 1991). This Court accordingly affords great def erence to the judgment of the trial court on this issue, and finds that the evidence does not compel a contrary conclusion.

Hav ing foun d that the trial court did not err in finding that there was no smoke detector on the premises, Appellants’ arg ument that they were not g uilty of negligence pe r se is without merit.

III. Proximate Cause

The trial court found that Appellants were gui lty of negligence per se in not installing smoke detectors in the home which burned and that their negligence was a proximat e c ause of the minors’ deaths. Appellants argue that the fire started by Appellees was an interveningand superseding cause which relieves them of liability. The fire investigator, Gerald Alsup, stated in his report and at trial that the cause of the fire was an open burning candle which the Do wdys had lit which caught the curtains on fire and subsequently bur ned the home. The trial court ruled that Appellees, Mary and Cathy Dowdy, w

ere negligent by burning the candle and then going to bed without putting out the candle and that their negligence was a proximate cause of the fire. In fact, the trial judge ruled that Cathy Dowdy
was 45% negligent andMary Dowdy w as 35% negligent, barr

ing their individual recovery in this case.

Proximatecause is that act or omission which immediately causes or fail s to prevent the plaintiff’s injury; an ac t or omission occurring

or concurring wi

th another

which, if it had not happened, injury wo uld not have been inflicted. Solomon v. Hall , 767 S.W.2d 1586

(Tenn. Ct. App. 1988); Tennessee Trailways, Inc. v. Ervin , 438 S.W.2d 733 (Te nn. 1969). The omission of theAppellants in failing to equip the home with a smoke detector clearly fits into this definition of prox imate cause. This omissionresulted in a failure to prevent the deaths of the Dowdy chil dren.

While the negligence of the Dow dys was also a prox

imate cause of the deaths, the act or omission of

the Wilsons concurred with the negligence of the Dowdy s, to cause the deaths of the ch ildren. Cl early, the fire would have occurred regardless of the negligence of the Wilsons. However, absent the omission of the W ilsons, the Dowdys likely would hav e b een awakened by the fire detector, and able safely to exit the home with their children. The negligence of the Wilsons was a proximatecause of the deaths of the Dowdy children.

This Court further believes that to hold the cause of the fire was a superseding act would circumvent

the very purpose of smoke detectors. Smoke detectors will very rarely be the proximate cause of the fire itself. However, smoke detectors are create d for the very purpose of providing an early warning to occu pants of a dwelling in the ev ent of a fire. Smoke detectors are required to be install ed under Tennessee law not only to save the livesof those persons caught in a pur ely accidental fire, but rather to save all lives regardless of the origi n of the fire.

IV. Recovery for Wrongful Death by Negligent

Parties
Ap pe llants argue that the trial cour t erred in awarding

a recovery for the wrongful death of the children when the sol e beneficiaries were more tha n fifty perc ent (50%) negligent. The AppelleesMary and Cathy Dowdy sue d as next of kin for the wr ongful death of their respective children. The trial court apportioned fault a s follows:

Steve Dowdy, a minor 0% Argusta Dowdy, a minor 0%7 Mary Ann Dowdy 35% Cathy Dowdy 45% Myles and Arlene Wilson 20% The trial court thenstated that the claim of Emma Dowdy (grandmother of the deceased children) was distinctly separate and stood apart fromthe other claims; and therefore her claim should be considered separatel y. The court found that bec ause th e fire officials instructed Emma Dowdy not to enter the burning residence, her negligence was eq ual to or greater than fif ty percent (50%) and she was the reby barre d from re covery.

The trial court then went on to consider the

claims of Cathy and Mary Dowdy. The court likewise considered the claims for personal injuries by Mary Dowdy and Cathy D owdy in their individual cap

ac ities to be separate and apart and therefore considered them separately. The

court then statedthat their individual negligence was eq ual to or greater than fifty percent (50%) whe n compa red to the negligence of the defendant proper ty owners and barred them from recovery as parties plaintiff in their individual capacities.
Although not raised as an issue on appeal, this Court finds it necessary to address the correctness of the trial court’s characteriz

ation of the fault of the plaintiffs, in order to properlyaddress A pp ellants’ final claim. This C ourt fails to see how each i ndividual plaintiff’s negligence was equal to or gr eater than fifty percent (50%) , when the trialcourt apportioned forty-five percent (45% ) negligence to Cathy

Dowdy and thirty

-f ive percent ( 35%) negligence to Mary Dowdy. It appears that the trial court either incorrectl y considered the negligence of these tw o parties together

or based its

ruling on the fact that the negligence of each individual plain t iff was greater than the neg ligence of the Defendants.
However, this is a case in w hich there were found to be multiple tortfeas or s. In a case with multiple tortfeasor s, a plaintiff is entitled to recover as long as plaintiff’s fault is less than the combined fault of all tortfeasors. McIntyre v. Balenti ne , 833 S.W.2d 52 (Tenn. 1992). Of course, while the fault of al l tortfeasors is compared to d etermine whether a plainti ff is entitled to recovery, the pla inti ff may only recover from thos e parties made1 The defend ants are the appe llants in the ca se befo re this cou rt. Mary Dowdy and Cath y Dow dy did

not appeal the de cision of the tri al court.Any error mad e by the t rial co urt in f inding t he negligence of the plaint iffs to be equal to or greater than 50%, and d enying them any re cove ry in the ir individ ual ca pac ities is an issue not befo re this Co urt. 8 defendants in the action. See Ridings v. Ralph M . Parsons Co. , 914 S.W.2d 79, 84 (Tenn. 1996) (“Failure of the

plaintiff to assert its cause of action against such persons who are alleged by the defendant pursuant to Secti on 20-1-119 to have caused or contributed to the injury or damage, w ould notpreclude the assessment of fault against such persons but would preclu de the aw ard of damag es against such persons.”) Therefore, while Mary Dowdy and Cathy Dowdy would be entitled to recovery under this scheme, they could only recover damages from Defendants (Wilsons), as they chose not to include each other as defendants in this lawsuit. Plai ntiffs’ recovery w ould be reduced by

their own percenta ge of negligence and the percentage of negligence of any party not made a defendant against whom fault was properly attributed.

An argument c ould be made that the language found i n the trial court’s opin ion regardingthe negligence of Mary Dowdy and Cathy D

owdy beingequal to or greater than fiftypercent(50%), applies only to the individualclaims of Mary Dowdy and Cathy Dowdy, an d the trial court intended th e detailed apportionment of fault (spel led out above) t o govern the wrongful death claims. However, this Court sees no reason why the negligence of the parties should be apporti oned differently with regard to the individualand deriva tive claims. In order to address the final issue before this court regarding the plaintiffs’ recovery forthe wrongful deaths of their children , we mus

t fi rst address the trial c ourt’s finding of negligence. To the extent that the trial court’s opinion foundthe neg ligenc e of the pl aintiffs to be equal to or greater than fifty

percent (50%) with regard to the wrongful death claims, the trial court was in error. 1 The detailed apportionment of fault by the trial court shall apply.
Having found that the spe cific pe rcentages apportioned to the p arties by the trial court should control, the App ellants’ arg ument that th e trial court erred in awarding a recovery for the wrongful death of the children when the s ole beneficiaries

were more than fiftypercent (50%) negligent has no merit. Neither Mary Do wdy nor Cathy Dowdy w

as found to be more than fifty percent (50%) negligent. Therefore, this Court does not need9

to address the issue of whether a sole beneficiary who is found to be at least fifty

percent (50%) negligent is barred from recovery.
Cathy Dowdy was found

to be forty-five percent (45%) negligent in the deaths of the children. As her percentage of neglige nce is not equal to or greater than fifty percent (50%), she is entitled to recov ery. Cathy Dow

dy’s recovery

for the wrongful d eath of her son is reduced by the percent age of negligence attri buted to her and also by the percentage of negligence attributed to Mary Dowdy, as Cathy Dowdy chose not to make Mary Dowdy a defendant in this lawsuit. The Wilsons are liable only for the percentage of the damages occasioned by the ir negligence (20%)

. Mary Dowdy was found tobe thirty-five perc ent (35%) negligent i n the deaths of the child r en. Mary Dowdy is likewise entitle d to recovery for the w rongful death of her son. Using the same reasoning as abov e, Mary Dowdy’s recovery shall be reduced by the percentage of negligence attributed to her and by the percentage of negligence attributed to Cathy Dowdy, as

Mary Dowdy di d not bring suit agains t Cathy Dowdy. The

Wilsons are liable to Mary Dowdy

for the percentage of

damages occasioned by their negligence (20%).

The trial court held that as to the cause of action for the wrongful death of the minor children, Mary Dowdy an d Cathy Dowdy, r espectively, as “non-party” plaint if fs in their represen tative capacitiesare entitled to recover tw enty percent (20%) of the damages for the wrongful death of their re spective minor childr

en. The trial court reached thi s decision, irrespec tive of its statement that the negligence of the plaintiffs was eq u al to or greater than fifty percent (50%), based upon the premise that wr ongful death is a derivative action and that a cause of action would exist in the deceased minor children in the instant case against their mothers.

This Court affirms

the judg ment of th e trial court w hich aw arded th e plaintiffstwenty percent(20%) of the dama ges for the wrongful deaths of their respective children

. However, this Court would poi nt out that it is affirming the award of twenty per

cent (20%)10

based upon the fact that the trial court, in its specific apportionment of fault, attributed less than fifty percent

(50%) negligence to each plaintiff (Cathy Dowdy and Mary Dowdy). This Court does not reach the issue of w hether a recovery for wrongful death may be aw arded when the negligence of th e sole beneficiary is found to be eq ual to or greater than fifty percent (50%).

V. Conclusion

The judgment of the trial court is hereby affirmed. Costs of thi s appeal are taxed to the Appe llants, f or which exe cution m ay issue if necessar y.

HIGHERS, J. CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.