IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 13, 2004 Session

CHERYL O’BRIEN v. RHEEM MANUFACTURING CO.

Appeal from the Circuit Court for Montgomery County

No. C10-694 John H. Gasaway, Judge 

No. M2003-00530-COA-R3-CV - Filed May 27, 2004

In this appeal an unsuccessful plaintiff seeks review of a jury verdict approved by the trial court, in

favor of the defendant manufacturer. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court 

Affirmed and Remanded 

WILLIAM B.CAIN, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., P.J., M.S.,

and PATRICIA J. COTTRELL, J., joined.

Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Cheryl O’Brien.

Michael North and Ronald G. Harris, Nashville, Tennessee, for the appellee, Rheem Manufacturing

Co. 

OPINION

This wrongful death action is predicated upon the tragic death of a sixteen year old resident

of Clarksville, Tennessee. Eric Cole Riley lived with his mother, Cheryl O’Brien, in her home at

729 Jace Drive in Clarksville. In the early evening hours of April 25, 1994, Eric Riley was standing

in the two car garage of the home preparing to fill the gas tank in his lawnmower when he accidently

dropped the gasoline container. Fumes from the spilled gasoline traveled over to a gas fired water

heater located in the garage and resulted in a fiery explosion, which severely burned Riley. After the

explosion young Riley, engulfed in flame, ran from his house to the home of a neighbor across the

street. The neighbor, Carlyle Leffel, observing Riley, raced from his house, covered Riley with a

blanket, and extinguished the flames. Eric Riley died as a result of his injuries on May 3, 1994.

The voluminousrecord in this case detailslitigation that commenced on April 24, 1995, with

a complaint filed by Cheryl O’Brien as parent and next of kin of her deceased son, Eric Cole Riley.

Because of the limited nature of the question presented in this appeal, detailed recitation of the
 Defendant asserts additional issues claiming that the trial court erred in allowing Frederick Grim to testify

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as an expert and erred in denying Rheem’s motion for a directed verdict. Defendant further asserts that Judge Walton

was in error in granting a new trial subsequent to the first trial in this case. Because of the disposition made of Plaintiff’s

issues on appeal, it is unnecessary to address the issues presented by Defendant.

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history of this case is not necessary. It suffices to recognize the zeal, diligence, and prodigious effort

of all counsel in the representation of their respective clients.

The original complaint was filed against the contractor who constructed the home in 1991,

the installer of the Rheem gas fired water heater, the installer of the gas lines servicing the water

heater, the City of Clarksville and Rheem Manufacturing Company, the designer and manufacturer

of the water heater. The complaint charged various acts of negligence as to all of these defendants.

One by one over the next three and a half years, Plaintiff either settled with or voluntarily dismissed

all defendants except for Rheem Manufacturing Company. On July 27, 1999, Plaintiff dismissed

all allegations of negligence against Rheem and proceeded only on allegations of strict liability in

tort. Rheem then raised in its defense comparative fault on the part of all other previous defendants.

The case went to trial on August 9, 1999, and eight days later the jury returned a verdict in favor of

Defendant, Rheem Manufacturing Company. 

The trial court, Honorable James E. Walton presiding, thereafter granted Plaintiff’s motion

for a new trial on the basis of errors made in the admission of evidence. The second trial of the case

began on August 6, 2001, and ended in a mistrial when the jury was unable to agree on a verdict.

On September 7, 2001, Plaintiff filed a third amended complaint alleging fraudulent concealment

and misrepresentation. The case was tried again on July 8th through 12th, 2002, with the jury

returning a verdict in favor of Defendant. Plaintiff filed a motion for a new trial predicated only

upon the grounds that the evidence preponderated against the verdict of the jury. On January 27,

2003, the trial court, Honorable John H. Gasaway, III, presiding, approved the verdict of the jury and

denied the motion for a new trial.

Plaintiff appealed asserting these issues on appeal:

I. Was there material evidence in the record to support the jury’s verdict

that the Rheem gas fired water heater was not defective in design? 

II. Was there material evidence in the record to support the jury’s verdict

that the Rheem gas fired water heater was not unreasonably dangerous?

III. Was there material evidence in the record to support the jury’s verdict

that Rheem did not misrepresent the true nature of this heater by concealment of what

it knew about the real potential for danger to consumers who have gas fired hot water

heaters in their garages?

The case is thus presented to this Court on the singular issue of whether substantial material

evidence exists in the record to support the jury’s verdict. In an appeal challenging a jury verdict

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wherein the trial judge, acting as a thirteenth juror, has approved that verdict, appellate review cannot
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be based upon the weight of the evidence, but only on the existence of material evidence supporting

the verdict.

It is the time honored rule in this State that in reviewing a judgment based

upon a jury verdict the appellate courts are not at liberty to weigh the evidence or to

decide where the preponderance lies, but are limited to determining whether there is

material evidence to support the verdict; and in determining whether there is material

evidence to support the verdict, the appellate court is required to take the strongest

legitimate view of all evidence in favor of the verdict, to assume the truth of all that

tends to support it, allowing all reasonable inferences to sustain the verdict, and to

discard all to the contrary. Having thus examined the record, if there be any material

evidence to support the verdict, it must be affirmed; if it were otherwise, the parties

would be deprived of their constitutional right to trial by jury. City of Chattanooga

v. Rogers, 201 Tenn. 403, 299 S.W.2d 660 (1956); D. M. Rose & Co. v. Snyder, 185

Tenn. 499, 206 S.W.2d 897 (1947); City of Chattanooga v. Ballew, 49 Tenn.App.

310, 354 S.W.2d 806 (1961); Dynamic Motel Management, Inc. v. Erwin, Tenn.App.,

528 S.W.2d 819 (1975). Of course, these principles apply as well in a breach of

contract case tried by a jury as in a personal injury or other tort action.

Crabtree Masonry Co. v. C & R Const., Inc., 575 S.W.2d 4, 5 (Tenn. 1978).

In this products liability case, Plaintiff depended almost entirely on the testimony of expert

witnesses Fred Grim and Paul Daugirda not only in efforts to establish that the design of the Rheem

gas fired water heater was defective and unreasonably dangerous, but also as the basis for the

assertion of misrepresentation by concealment. Although a verdict for Plaintiff based upon such

evidence may have been unassailable on appeal, the verdict as approved by the trial judge, in fact,

was for Defendant. Plaintiff bore the burden of proving any defective design, unreasonably

dangerous condition of the water heater, and concealment by misrepresentation. The jury is free to

accept or reject expert testimony and may choose to reject such testimony even if it is not

contradicted.

Appellant places great reliance upon the testimony of Sgt. Kilpatrick that in his

opinion appellee’s proposed business would create a traffic hazard, but, in our view,

this opinion testimony although– not contradicted by an opposing contrary opinion–

is not conclusive. Expert opinions, at least when dealing with highly complicated

and scientific matters, are not ordinarily conclusive in the sense that they must be

accepted as true on the subject of their testimony, but are purely advisory in character

and the trier of facts may place whatever weight it chooses upon such testimony and

may reject it, if it finds that it is inconsistent with the facts in the case or otherwise

unreasonable. Even in those instances in which no opposing expert evidence is

offered, the trier of facts is still bound to decide the issue upon its own fair judgment,

assisted by the expert testimony. Act-O-Lane Gas Service Co. v. Hall, 35 Tenn.App.

500, 248 S.W.2d 398 (1951).
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Gibson v. Ferguson, 562 S.W.2d 188, 189-90 (Tenn. 1976).

This case is much like Dickey v. McCord, where the jury returned a verdict for Defandant.

This Court affirmed the judgment holding that “a jury is not bound to accept an expert witnesses’

testimony as true.” 63 S.W.3d 714 (Tenn.Ct.App. 2001).

The expert testimony offered by Plaintiff is not uncontradicted in the record. Defendant’s

expert Jacob Hall testified:

Q. . . . Is the water heater that’s the subject of this case defective?

A. No.

Q. Is the water heater unreasonably dangerous?

A. No.

Q. Can this water heater be safely installed in a residential garage?

A. Yes, as long as the conditions we’ve gone through are taken care of.

. . .

Q. What are the conditions that must exist in order for a water heater to be safely

installed in a residential garage?

A. Elevated, and then for the flammable liquids to be properly stored in

approved containers.

Q. Are those conditions communicated to the consumer by any information that

Rheem provides with the water heater?

A. Yes, sir.

Q. How are those conditions communicated to the consumer?

A. We have a label of that information on the water heater, and then that

information is also repeated in the use and care manual.

Q. And that’s the label in the use and care manual that we’ve been discussing in

some length over the last two and a half days?

A. Yes, sir.

The jury verdict in this case has been approved by the trial judge. Neither the jury nor the

trial court is required to accept Plaintiff’s expert proof, even if it is not contradicted. There is

substantial material evidence in the record to support the verdict of the jury and it does not matter

that there is substantial material evidence that would have supported a verdict for Plaintiff.

Appellate review of this jury verdict is at an end. Tenn. R. App. P. 13(d).

Judgment of the trial court is in all respects affirmed with costs assessed to Plaintiff. The

case is remanded to the trial court for any further proceedings necessary.
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___________________________________ 

WILLIAM B. CAIN, JUDGE