# FILED

February

21, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

WASTE MANA GEMENT, I NC. ) OF TENNESSEE, ) ) Plaintiff/Appellee, ) ) Davidson C ircuit ) No. 88C- 462 VS. ) ) Appeal N o. ) 01A01-9504- CV-00182 SOUTH CENTRAL BELL ) TELEPHONE COMPANY, ) ) Defenda nt/Appella

nt. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE THOMAS W. BROTHERS, JUDGE

For the Plaintiff/Appellee : For the D efendant/ Appellant : Angus Gillis, III Steven E . Ander son SCHULMAN, LeROY & BENNETT BASS, BERRY & SIMS Nashville, Tennessee Nashville, Tennessee



## MODIFIED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appe a l stems fr

om an incident in which

a piece of

broken tel ephone pole be ing dragged behind a garbage truck struck a pedestrian. The pedestrian sued the owner

of the truck, th e truck dr iver, an d the telep hone compa ny in the Circuit Court for Davidson County. After the truck’s ow ner settle d all the pedestrian’s claims, the trial court conducted a bench trial on the remaining claims between the truck own er and the telephone company an d awarde d the truck owner
a$27,114.47 judgment ag ainst the te lephone com pany. On

this appea l, the telephone company asserts that the final judgment is inconsistent with the trial court’s initial fi nding that the interveni ng negligenc e of an unkno wn driver , not the telephone

compan y’s install ation or ma intenance of its equip ment, proximate ly caused the pedestrian’s injuries. We find t hat the judgm

ent must be modified because o f the lac k of evidenc e establis hing a causa l conn ection

between the pedestria

n’s injurie s and the te lephone com pany’s insta

llation and maintenan ce of its lines and pole s.

I.

GlennGriggs drove a garbage truck for Waste Manageme nt, Inc. in Nashvill e. On October 17, 1987, a metal bracket on the right rear of his truck snagged some over

head tele phone lines a s he made a r ight turn from Wedgew ood Avenue ont

o Beech Avenue. Mr . Griggs did not realize that the telephone lines had become en s narled on the back of his truck and kept driving down Beech Avenue. The incre a sed tension o n the lines b roke a nea rby telepho ne pole, a

nd the top piece o f the pole, still atta ched to the

ta ng led lines, careene d down the streetbehind Mr. Griggs’s truck. Mr. Gri ggs did not stop his truck until he heard the second telephone pole b rea k. Only then did he discover that he had been dragging a piece of the broken telephone p ole behind hi s truck and that it had struck and injured Ma

ry Owen who had be en standing i n the roadw ay on Beech Avenue.

Ms. Owen sue d Waste M anagemen t, Inc. and M r. Gri ggs for $750, 000. WasteManagement, Inc. filed a third-party complaint against South Central Bell1 The challenge to Waste Management, Inc.’s contribution claim was based on the

appa rent repudiation of contribution among joint tortfeasors in McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn. 1992) (holding that “the Uniform ContributionAmong Joint Tort-feasors Act . . . will no longer determine the apportionment of liability between codefenda nts”).

2 The trial court stated: “But most importantly, I specifically - this is for the purposes of the record - do find that the technical violation of the statutory provisions as far as the height of the wire is not the p

roximate cause of this particular event which has occ urred and the injuries which were suffered which we re the basis of this settlement.”

3 The trial court stated: “The absolute most guilty party in this matter is whoeve

r hit this guy wire. That’s whose negligence is responsible for these injuries.. . . apparently somebody - probably even the night before which we just don’t know, and at some rece nt time, ran into th

is guy wire, and they’re the peo ple whose negligence is mostly responsible, and I do find that supports the argument

for inter vening ca use to come in and break the chain of responsibility that may be there.” -3- Telephone

Company al leging negli gent maintenance of t he telephone

wires a nd poles. South Cent

ral Bell filed a c ross-cla

im against

WasteManagement, Inc. and Mr. Griggs for damage s to its equip ment. Ms

. Owen dismissed all her c laims in
ear ly 1990 after

Waste Ma

nagement, Inc. agr

eed to pay h er $275,00 0. Sout h Central Bell thereafter amended its an swer to challenge Waste Management, Inc.’s right to seek contribution or

indemnity 1 and to assert thatMs. Owen’s injuries had be en caus ed by the ne gligence of an unknown motorist wh o had sever ed a guy wire on one of the

poles befo re the inc ident with Waste Ma

nagement, Inc.’s truck.
Followinga bench trial in September 1994, the trial court decided that comparat ive fault pri nciples app lied to Sout h Centr al Bell’ s property damage claim against Waste Management, Inc. but not to Waste Managemen t Inc.’s contributio n claim against South Central Bell. It then found that South Central Bell had not comp lied with the height r

equireme nts of the

National Electr ic Safety Code when it

installed its telepho ne line but t hat this “te chnical vi olation” did not
causeMs. Ow en’s injur

ies. 2 The trial co urt specifically found that Ms. Owen’s injuries were caused by an unknown dri ver who, in an ear lier unre lated inci dent, had severed t

he guy wire supporting one of the brok

en telephon e poles the

reby causing the telephone lines to drop low e nough to be sna gged by a pas sing vehicle like Waste Management, Inc. ’s garbage t ruck. 3 Accordingly, the trial court dis misse d Waste Management, Inc.’s contribution claim against South Central Bell.4 In light of its allocation of ten percent of the fault to South Central Bell, the trial court reasoned that Waste Management, Inc. was entitled to $27,500 (10% of t

he $275,0 00 paid to M s. Owen). It also de

termined that South

Central Bell’s $48 5.53 prop erty damage judgm ent should be deducted from this award. Subtracting $485.53 from $27,500 leaves $27,014.47. Thus, the judgment for $27,114.47 contains a $100 arithmetic error. -4- The trial court then turned to South Central Bell’s claim for the da

mage to its equipment. Notwiths tanding its earlier findings w ith regar

d to causat

ion, the trial court asse ssed sixtypercent o f the fau lt to the unknown driver who severed the guy wire; thirty percent of the fault to Waste Management, Inc. because Mr. Griggs should have seen the telephone wire hanging over Beech Avenue; and ten percent of the fa ult to South Central Bell. Since the partie s had stipula ted that the telephone company’s damages w ere $1,6 18. 46, the trial court aw arded Sout

h Central Bell a $485.53 judgment against Was te Managemen t, Inc.

WasteManagement, Inc. filed a post-judgm

ent motion

requesting the trial courtto alter o r

amend the dismissal of its contr ibution clai m in light of

a recently released Ten nessee Supreme Court de cision holding that contribution actions tried
or retried after the McIntyr e v. Ba lentine decision

should b e tried in accordance withcomparativ e fault prin ciples. See Berv oets v. Harde Ralls Ponti ac-Olds, Inc., 891 S.W.2 d 905, 908 (T enn. 1994) . The tr ial court grant ed this moti on and departingfrom its o r ig inal findings, determined that Ms. Owen’s injuries were caused sixty percent by the negligence of the unknown driverwho sever ed the guy wire, thirty pe rcent by th e neglige nce of Waste M anagement , Inc., and ten percent by the negligence of South Central Bell. Accordingly, the trial court awarded Waste Ma

nagement, Inc. a $ 27,114.27 4 judgment ag ainst South Central B ell.

II.

SouthCentral Bell attaches great significance to the trial court’s original causation findings and

asserts t hat the tri al court’ s subsequent allocatio n of fault
on Waste Ma

nagement’ s contributi on claim cannot sta

nd because

it conflic ts with these findings. We find noinconsi stency. Rat her, we find that the trial court simply changed i ts mi nd with re gard to the causation issue betw een the tim e it rendered its initial decision and the time it granted Waste M anagemen t, Inc.’s motion to alt

er or amend.-5- A judgment adjudicating a ll the claims between all the parties becomes final thirty days after e ntry unless one of the parties f iles a Tenn. R. C iv. P. 59 motion. A trial co urt has the a uthority to alter or amend its judgment before it becomes final. Je rkins v. McKinney, 533 S.W. 2d 275, 280 ( Tenn. 197 6); Newport H ous. Auth., Inc. v. Hartsell, 533 S.W.2d 31 7, 320 (Tenn . Ct. App. 1975 ). Thus, as long
as its judgme nt has not become final, the trial court may change its mind after reconside ring the proof a nd the app licable la w. Dowling v. Fawver , C.A. No. 715, 1987 WL 2019 0, at *6 (Tenn. Ct. App. Nov. 25, 1987) (NoTenn. R . App. P. 11 applicati on filed).

The trial cour

t originall y ruled fr

om the benc h that the ne gligenc e of the unknown driver, not South Central Bell’s failure to install its lines at the required height, proximate ly caused M s. Owen’s injurie s. This finding prov ided the ba sis for the judgmen

t dism issing Waste Ma

nagement, Inc.’s contributio n claim an d awardin g South Cent

ral Bell $485.53. T

his judgment , how ever, nev er became final because W aste Mana gement, Inc . fi led a time ly Tenn. R. Civ. P. 59.04 motion. After reconside

ring theevidence

using compa

rative f ault principle s, the trial courtchanged it s mind on the question of causat ion. Rath er than al locating
one hundred per

cent of the

fault to th e unknown dr

iver, it allocate d sixty percent of the fault t o the unk nown driv er, thir ty percent of the fa

ult to Wast

e Management, Inc. , and ten p ercent of the fault to South Ce ntral Bel l.

The trial court’s original cau sation findings lost their legal significance when the trial court changed its mind and entered a final judgm

ent alloca ting fault among three parties. The finaljudgment is internall y consistent , and thus we need not concern ourselves with inconsistencies between the original and final judgments or

with the i nternal in consistenc ies inthe origi nal judg ment. Since a trial court sitti ng without a jury may change its mind before a judgment becomes final, we hold that the trial court did not err when it chan g ed its mind a bout causation and enter

ed a final

judgment dif

ferent f rom its ori gina l causati on finding s.

III.-6- Negligence law in Tennes s ee has unde rgone a dr amatic m

etamorpho sis during the past

decade. The most noted chang e came with the Tennessee Supreme Court’s decision to re pl ace the contributory negligence with a modified
c omparativ e fault sys tem. McIntyre v. Balentine, 833 S.W.2d 52 , 56 (Tenn

. 1992). This cha

nge, howe ver, wa s precede d by another significa nt development. One year earlier, the c ourt altered the analytical framework of common-law negligence

actions.

Prior to 1991, the

prevailing view was that common-law negligence causes of action were made up of

three com

ponent part s: (1) a duty of ca re owed b y the defendant to the plainti ff, (2) conduct bythe defen dant brea ching that duty, and (3) an injury that was pro ximately caused by the defend ant’s con duct. Lindsey v. Miami Dev. Corp., 689 S.W. 2d 856, 858 ( Tenn. 198 5); Shouse v. O tis, 224 Tenn. 1, 7, 448 S.W. 2d 673, 676 ( 1969); DeGlopper v. Nashvill e Ry. & Light Co., 123 Tenn. 633, 642- 43, 1 34 S.W. 609, 611 (1911). In 1991 the supreme court red efine d these com

ponents by se

parating t

he injury c omponent fr om the causation component a

nd by bifurc ating causa

tion into tw o separat

e components. Accordi ngly, common-la w negligen ce causes of action are n ow u nderstoo d to contain five ele ments; (1) a duty of ca re owed b y the defe ndant to the plaintiff , (2) conduct by the defendant

breaching that duty, (3) an injury or loss to the plaintiff, (4) causation in fa ct, and (5) pro ximate or l egal cause. McClenahan v. Cooley, 806 S.W.2d 7 67, 774 (Ten n. 1991).

Causation

in fact a nd lega l cause are very different co ncepts, Ridings v. Ralph M. Parsons Co ., 914 S.W.2d 79, 83 (Tenn. 1996); Kilpatrick v. Bry ant, 868 S.W.2 d 594, 598 (T enn. 1993) , and distinguishing between them has been hailed by some as one of t

he most hel

pful of the

recent br eakthroughs in negl igenc e jurisprudence. See, e.g., 4 Fowler V. Harper et al., The Law of Tort s § 20 .2 n.1 (2d ed. 1986); Victor E. Schwartz, Comparative Negligence § 4.1, at 8 9 ( 3d ed. 1994). Causation

in fact r efers to the cause

and effe ct relations hip that must be established between the defendant’s conduct and the plaintiff’s l oss before liabilityfor that par ticular lo ss will be i mposed. Joseph H. Kin g, Jr., Causation, Valuation, and Chance i

n Personal I

njury Torts InvolvingPreexisting Conditi ons and Future Co nsequence s, 90 Yale L.J . 1353, 135 3 (1981). On the othe r hand,5 Bain v. Wells , App. No. 01S01-9603-CV-00049, 1997 WL 9056, at *8 (Tenn. Jan. 13, 1997) (For Publication). -7- legal cause connotes a policy decision by the judiciary to deny liab ility for otherwis e actionab le conduc t. Bain v. Wells, ___ S.W. 2d ___,

___(Tenn. 1997); 5 George v. Ale

xander, 931 S.W. 2d 517, 521 ( Tenn. 199 6). It r equires the courts to establish the boundar y o f legal liab ility, Kilpatrick v. Bry ant, 868 S.W.2d at 598, using mi xed consi deration s of logic , common sen se, just ice, poli cy, and precede nt. Smith v. Gore, 728 S.W. 2d 738, 749 ( Tenn. 198 7 ) ; Lancaster v. Montesi, 216 Tenn. 50 , 56, 390 S.W.2d 217, 220 ( 1965).

The defendant’s conduct must be a cause in fact of the plaintiff’s loss before there can be lia

bility under

negligence

or any othe

r th eory o f liability. Harper, supra, § 22.16, at 400; Schwartz, supra, § 4-1(a), at 90. Thus, no negligence claim can succe ed unless the plainti ff can f irst prove that the defendant’s conduct
was the cause in fact of the p laintiff’s loss. Lancaster v . Montes i, 216 Tenn. at 55, 390 S.W.2d at 220 (stating that “[i]f . . . defendant ’s conduct . . . w as not a fa ctor in causing plaintiff’s damage, that ends th e matter. ”); Drewry v . County o f Obion, 619 S.W.2d 397, 398 (Tenn. Ct. App. 1981) (stating that “[p]roof of negligence without proof of c ausation is nothing.”) ; Carney v. Goodman, 38 Tenn. App. 55, 61, 270 S.W.2d 572, 575 (1954). The inquiry is not a metaphysical one, but rather
acommon sen se analysi s of the fa cts that la

y pe rsons can undertake as competent

ly as themost

experien ced judges. Restate ment (Se cond) of T orts § 431 cmt. a (1965); Har per, supra, § 20.2, a t 91; W. P age Keeton, Prosser and Keeton on the Law o

f Torts, § 41, at 264 (5th ed. 19 84).

Tennesse e’s court s have consi stently recognized thatconduct cannot be a
causein fact of an injury when the injury would have occurred even if the conduct had not t aken place. Shouse v. Ot is, 224 Tenn. at 8, 448 S .W.2d a t 676; Fairbanks, Morse & Co. v. Gam bill, 142 Tenn. 633, 643-44, 222 S.W. 5, 8 (1920); Demingv. Mer

chants’ Cot

ton-Pres s & Storag e Co., 90 Tenn. 306, 353, 17 S.W. 89, 99 (1891). This principle has come to be known as the “ but for” te st. As articulated by Dean Prosser, the “but for” test states that

[t]hedefendant ’s conduct is a cause in fact of the event if the event w ould not have occurre d but f

or th at conduct; conversely, the d efend ant’s condu ct is not a-8- causeof the event, if the ev ent would have occurred without it. Keeton, supr

a, § 41, at 266. The supreme court picked up on the “but for” terminolog y in 1950 and ha s used it ever since. Wood v. N

ewman, Hayes & D ixon Ins. Agency, 905 S.W. 2d 559, 562 (Tenn. 1995) (referring to the “but for” test as classic language of

causation in fact) ; Kilpatrick v. Bryant , 868 S.W .2d at 598; Watson v. Borg-Warn er Corp., 190 Tenn. 209, 215, 2 28 S.W. 2d 1011, 1013 (1950).

In most circ umstances , the “but for” test e ffective ly identifies conduct that shouldbe excluded as a cause in fact of an in jury. Harper, supra, § 20.2, a t 92; Keeton, supr

a, § 41, at 266. However, it has proved to be less than satisfactory in several circumst ances, p articula rly when t

wo indepen dent cause s c on cur to produce an injury that either of them alone coul d have produced . Keeton, supra, § 41, at 266- 67. In recent years, another test - the “substantial factor” test - has taken its place besidethe “but fo r” test to ad dress thes e circumsta nces. The most
common formulat ion of this te stappearin g in the Resta tement (S econd) of

Torts states: The actor’s negligent c onduct is a l egal c ause o f harm

to another if (a) his conduct is a substantial fac tor in bringing about the ha

rm, and (b) there is no rule of law rel ieving the actor from liabilitybecause o f the manner in which his negligence has resulted in harm.
Restatem ent (Second) of Torts § 431 (1965). This court invoked the restatement’s version of the “sub st antial fa ctor” test as early as 1 948. Waller v. Skeleton, 31 Tenn. App. 103, 115, 212 S. W.2d 690, 696 (1948). The supreme court followed suit sev enteen year s later, Lancaster v . Montes i, 216 Tenn. at 57, 390 S.W.2d at 221, and ha s now incor

porated it in its thre e-part t

est for determining proxima

te or legal cau sation. McClenahan v. Cooley, 806 S.W. 2d at 775.

The “substantia

l factor” test has not turned out to be the hoped for panacea for all causation in fact pr

oblems. O ver theyears, it has taken on several distinct and conflicti ng meanings . Harper, supra, § 20.6, at 180-82; Keeton, supra, § 41, at43-45 (Supp

. 1988). While several jurisdictions have adopted the “substantial6 Re statement (Second) of Torts § 432(2) applies to circumstances whe re two independen t causes produced an injury that either of them alone c ould have produced. -9- factor” test as their sole te st for dete rmining ca

usation in fact, see, e.g., Mitchell

v. Gonzales, 819 P.2d 872 , 878-79 ( Cal. 1991); Knodle v. Waikiki G rand Hotel, 742 P.2d 377, 386-87 (H aw. 1987) ; Busko v. DeFili ppo, 294 A.2d 51 0, 512 (Conn. 1972), others hav e decli ned to jettis on the “bu t for” test. See, e.g., Culver v. Bennett, 588 A.2d 10 94, 1098-99 (Del. 1991); Fussell v. St. Clair, 818 P.2d 295 , 299 (Idah o 1991).

Rather than supplan

ting the “but

for” tes t, the “s u bstantia l factor” test in Restatem ent (Second) of Torts 3431 actually retains the “but for” causa tion principle as an essential part of the causation in fact analysis . K ing, supra, 90 YaleL.J. a

t 1356. Re statement

(Second) of Torts § 432(1) (1 96 5) exp lains that Except as stated in Subsect ion (2), 6 the actor’s negligent conduct is not a subst antial fa ctor in bri nging about harm to another if the har m would have been sustained e ven if the a

ctor had not

been negli gent. Thus, the “substantia

l factor” test, l ike the “bu t for” te st, incorpora tes the con cept thatconduct can not be a cause in fact of an injury if

the injury w ould still ha ve occurred even if the conduct had never taken place.

Both the “but for” test a nd the “subs tantial f

actor” test recognize that conduct must

be a “necessary antecedent” to an injury in order to be considered
acause in fact

of the injury. See Restatem ent (Sec ond) 432, c mt. a. Choosing between the two te sts would not be outcom

e-deter minative in this case , and thus
we perceive n o pr actical benefit in joining the a

cademicdebate co ncerning th e relative merits a nd shortcom

ings of thes e two test s. The t ests are compatible , and in many case s, the “but for” te st pr ovides the t rier of f act with appropria

te guidance for

deciding c ausation

in fact questions. Since the “substantial factor” test is not alw ays superior to the “but for” te st, there is no reaso n to requir

e its use in every ca se. We prefer to leave this matter to the tria l courts who must selec t the legal principles most applicable to the facts of each particular case.

IV.7 McClung v. Delta S quare Ltd. Partnersh ip , App. No. 02S01-951 2-CV -00122 , 1996 WL 617553, at *12-13 (Tenn. Oct. 28, 1996) (For Publication).

8 Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1994).

9 L.K.I. Holdings, Inc. v. T yner, 658 N.E.2d 111, 119-20 (Ind. Ct. App. 1995) (ho lding that the comparison of fault inherent in the common-law doctrine of intervening cause has been incorporated

into the c omparat

ive faul t system); see also Dodd v. Varady, 799 S.W.2d 216, 220 (Tenn. Ct. App. 1990) (stating that the doctrines of intervening negligence and last clear chance (continued...) -10- The interveni ng cause doc trine is a common-law liability shifting device. Itprovides tha

t a neglige nt actor wil l be relieve d from liab ility when a new, independ en tand unforse en cause i ntervenes to produce a result t hat could not have been forese en. Glenn v. Conner, 533 S.W.2d 297, 301-02 (Tenn. 1976); Brown v. City

of Kingsport, 711 S.W. 2d 607, 609 ( Tenn. C t. App. 1986). T he doctrine only applies when (1) the interv ening act w as suffic ient by itself to cause the injury, Underwood

v. Waterslid es of Mid-Amer ica, Inc., 823 S.W. 2d 171, 180 (Tenn. Ct. App. 1991), (2) the intervening a ct was not

reasonab ly forese eable by the negligent actor, Evridge v. Ameri can Honda Motor Co., 685 S.W. 2d 632, 635 (Tenn. 1985), and (3) the intervening act was not a normal response to the original negligent actor’s cond uct. McClenahan v. Cooley, 806 S.W. 2d at 775; Solomon

v. Hall, 767 S.W. 2d 158, 161 ( Tenn. C t. App. 1988). The custo mary expla nation of the doctri ne is that an inde pendent, i nterveningcause “br eaks the chain of legal causation between the original actor’s conduct and the eventual injury. McClung

v. Delta Squar

e Ltd. P artnership, ___ S.W.2d ___, ___ (Tenn. 1996); 7 Haynes v. Hamil ton County, 883 S.W. 2d 606, 612 ( Tenn. 199 4); Ford Motor Co. v

. Wagoner, 183 Tenn. 392, 401, 192 S.W.2d 840, 844 (1946).

The separati on of causa

tion in fac t from le gal causation and the adop tion of the compa

rative f ault doctr ine have obs cured the

role and si gnif

icance of the intervenin g cause do ctrine. Intervening cause appears to relate more to legal causation than to cau sation in

fact because it does not come into play until after causation in fact has b een establ ished. Doe v. Linder C onstr. Co ., 845 S.W. 2d 173, 184 (Tenn. 1992); Keeton, supra, § 44, at 301. The doctr ine also ap pears to have survived the adoption of comparative faul t even though other simi lar liabi lity
s hifting doctrines such as last clear chance, implied assumption of the risk, an d remote contributor

y neglig enc e have been subsumed int o compara

tive fault

. 8 Whileotherjurisdictions have concluded otherwise, 9 the supreme court has stated9 (...continued)

are no longer appropriate under admira lty’s proportional fault system). -11- thatproximate cause and intervening cause rem ain jury questions in t he comparat ive fault dec ision-maki ng pr ocess. Haynes v. Hamilton County, 883 S.W.2 d at 612.

Decision- making in a compa rativefault proc eeding wi ll be more efficient and re liable if causation- in-fact issues are resolved a

t an earl y stage. T

hus, causation-in-factissues should be resolved before t aking up lega l causeissues or allocatin g fault. By structuring the process in this manner, the trier of fact w ill decideall causa

ti on-in-fa ct issues be fore dete rmining w hether a defendant who might otherwi se be liable s hould be rel ieved fro m liability because o f the independent and unforeseen conduct of another.

V.

We m ust decide first whether the evidence supports the trial court’s
conc lusion t hat the manner in which South Central Bell erected and maintained its lines and poles w as a

cause in f act of Ms. Owen’s injuries. If the a nswer to t his question is no, Wa ste Management, In c. canno t recover from South Central Bell underany theory of liabil ity. Only if South Cent

ral Bell ’s conduct was a ca use in fact of Ms. O wen’s inj uries wil l we have to determine whether South Central Bell shouldbe excused from liability because an unknown driver severed the guy wire on one of t he teleph one poles

.
Causation in fact is an all-or-no thing pr opositi on. Keeton, supra, § 67, at 474. While the

re may be different de grees o f liability or fault, specific conduct is eith er a cau se in fac t, or it is not. Ac cordingly, plaintiff s have the b urden o f introducingevidence

that aff ords a rea sonable bas is for concludingthat it is more likely than not tha

t the defe ndant’s con duct was a cause in f

act of th eir in

jury. Cook v. Spin naker’s o

f Rivergat e, Inc., 878 S.W.2d 93 4, 939 (Tenn . 1994).

W ast e Management, Inc. had the bur den of provi ng that the m anner in which South Central Bell installed its lines and poles was a cau se in fact of Ms.-12-

Owen’s injuries. It prese nt ed some proof that the lines w ere origi nally strung several inches low er than the height req

uired by the National Electric Safety Code. However, t he pro of is undisput ed that tru cks simila

r to the one

involved in th

is incident had passed under these very lines without incident for sixteen years until
avehicle driven by an unknown driver hit and severed the guy wire on one of the poles. It is also undisputed tha t the lines fell to bel ow thir teen fee t t hree inches only after the guy wir

e was se vered.

WasteManagement, Inc . has asserted throughout this case that the lines would not have fa

lle n belo w thirte en feet t hree inch es had they been origin ally installed at eighte en feet or higher as r

equired by t

he Nation al Elec tric Saf

ety Code. Howeve

r, its ex pert engine er candidly concede d th at h e could not determine

the height of the lines before the guy wir e was severed and, more importantly, how far the lines fell whenthe guy wir e was severed. He could not state that the lines would not have fallen below thirteen feet three inches had they been installed f

our to six inches higher in 1971, and the record contains no other evidence supporting suc h a conclusi on.

Waste Ma nagement, Inc. has not proved t hat its truck would not ha ve snagged the telephone lines had South Central Bell originally installed the lines ata proper height. Even if the lines had been installed several inches highe r, it is
more likely than

not that Wast e Managem

ent, Inc .’s truc k would

have snagge d the lines after the unknown driver severed the g uy wi re. Th us, even i f Waste Management, Inc. proved that South Central Bell installed its lines contrary to the National Electrical Safety Code, it has not pr oved that the

installati on of the lines
was acause in fact of Ms. Owen’s in juries. Without this proof, the trial court had
no factual basis to conclude that South Central Bell’s conduct was a cause in fact of Ms. Owen’s injuries and, ther efore, had no basis to all ocate any fault to S outh Central Bell. It follow s, there fore, t hat Waste Management, Inc. is n ot entitled to contributio n from Sou th Centra l Bell.

VI.10 This is the same as th e trial c ourt’s or

iginal judgment. We

have not m

odified it because South Central Bell has not appealed from thetrial cou rt’s conclusion th at it

was ten percent at fault with regard to its prope

rty dama ge claim. -13- For the reasons stated herein, we vacate Waste M anagemen t, Inc.’s $27,114.47 judgment and remand the cas e to t he trial court for the entry of a judgment in favor of

South Cent

ral Bell and against Waste Management, Inc. for $485.53 10 and for whatever other proceedings may be required. We tax the cos ts of this appe al in equal proportion s against S outh Centra l Bell Te lephone Com

pany and its surety and Waste

Management, Inc. for whic h execution , if necessary, may issue.

_____________ __ _____________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

_______________ SAMUEL L. LEWIS, JUDGE

_________________

_______________ BEN H. CANTRELL, JUDGE-14-