# FILED
February 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk JOEY BROWN, as next friend ) and natural guardian of ) MITCHELL W. BROW N, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9705-CV-00217 VS. ) ) Lawrence Circuit ) No. CC-55-96 WAL-MART DISCOUNT CITIES, ) ) Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CIRC UIT COURT OF LAWRENCE COUNTY AT LAWRENCEBURG, TENNESSEE THE HONORABLE JIM T. HAMI LTON, JUDGE

W. CHARLES DOERFLINGER P. O. Box 692 8 Public Square Lawrenceburg, TN 38464 Attorney for Plaintiff/Appellee TRACY SHAW CAROLYN E. UNDERWOOD 300 James Robertson Parkwa y Court Square Building Nashville, TN 37201-1107 Attorney for Defendant/Appellant

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE
CONCUR: KOCH, J. BUSSART, J.



## O P I N I O N- 2 - In this slip a nd fall case in which a child slipped on some ice cubes in the vesti bule of a

large department store, the jury returned a verdict for the plaintiff but attributed 70 % of the fault to the unknown person who pla ced or dropped the ice on the floor. Rulingon a post-trial motion, the trial judge held that the store’s fault was 100 % because t he plaintiff could not sue the unknow n tortfeasor. On appeal, the defendant asserts that there is no evidence to support the verd ict and thatthe trial judge erred in modifying the j ury’s verdict w ith respect to

th e d eg re e of fa ul t. We find that there is evidence from w hich the jury could hav e found that the store was negligent and thatthe store cannot attribute part of the fault to the unknown tortfeasor. We, therefore, affirm the lower court’s judg ment.

I. Factual and Procedural Background

On January 3, 1995, three-y ear-old Mitc hel l Brown slipped on ic e and water that had spilled o ut of a c up in the vestibule of the Wal-Mart store in Lawrenceburg, Tennessee. There was no evi dence as to how the ice came to be on the floor or

who left the drink in the vestibule. It was clear that the ice had spilled out of a cup from the Wal-Mart drink dispenser in the store's snack bar where self-service drinks were avai lable. The ice was sti ll hard at the time of the accident.

Prior to trial, Defendant's attorney announced his intent

to argue that the juryshould assign fault to the unk nown person who left the cup in the vestibu l e. Neither Plaintiff’s counsel nor the tr ial court objected, and at the close of the trial, the judge's instructions to the jury encompassed the comparativ e fault of an unkno wn tortfeasor. The court told the jury that they must "determine the fault, if any, ofeach of the partie s . . . what I'm talki ng about when I say ' parties' in this case is th e unknown - - what the law ca lls an unknown tortfeasor . . . . If you find that more than
one of the part ies are at fault, you will the n compare the fault of the parties. To do this, you will need to kn ow the definition of fault. A par ty is at fault if you find b y a preponderance of the evidence that the party was negligent; and that the negligence1 While the propri ety of this jury instructi on is not at issue, we note that our supreme court has rejected the proposi tion t hat proof of proximate cause i s necessary to "shift the blam e" to

a kn own non party. In George v . Alexander , 931 S.W.2d 517, 521 (Tenn. 1 996), the cour t stated that "'bla me-shifting'

in a negl igence context actually has to do with the el ement of causation i n fact. Once the defe ndant int rodu ces evide nce that a noth er pe rson 's co ndu ct fits this e lem ent, it h as ef fectiv ely sh ift ed the blame to t hat person." If thi s were not so, a legit imate issue i n this case woul d be the existence of proof of the du ty, breach of duty and proxi mate cause with regard t o the unknown tortfeaso r. See Snyder v. LTG Luftt echnische GmbH , 955 S.W .2d 252 (Tenn. 1997) infra , note 2.

- 3 - was a proximate cause of the injury or damage for w hich its claim is made." 1 The court th en g ave the jury a verdict form with the "unknown tortfeasor" listed as a potential person to whom it might apportion fault and exp lained to them that this was "the unknown person who depo sited the cup."

The jury returned a ve rdict finding the total amount of dam ages to be $2,625.00 and assigning 70% fault to an unknown tortfeasor and 30% to Defendant. As a result, the court order ed that Plaintiff recover $787. 50 against Defendant. Plainti ff then filed a motion f or new trial in whi ch he argued that the court er red by allowing the jury to consider the guilt of a nonparty tortfeasor.

In its final order, thecourt stated that it had "err ed in allowing Defendant to include a s unknown tortfeasor, (the person or per sons responsible for leav ing the cup of ice on the floor

at Wal-Mart), for the jury to assign a percentage of fault." In so ruling, the court stated that the McIntyre v. Balentine

doctrine allows the

jury to assign fault to an unn amed tor tfe asor who is k nown to the defendant. Here, "[t]he re is no way the Plaintiff in the instant case co uld sue and obtain judgment against whom ever left the cup of ice on the floor at Wal-Mart, because no one knows who to sue." Since the court w

as sati sfied with the m onetary award to Plai ntiff, it overruled the motion for
new trial and sta ted that "the judgment of $2625 [woul d] remain in tact" thereby effecting a reapportionment of 100% of the fault t o Wal-Mart.

To reiterate, this case presents sev eral issues, one

of which involves

the jury's consideration of the fault of a potential person w ho spilled the ice on the floor in the Wal-Mart vestibule. If we det ermine that the jury shoul d not ha ve be en instructed to consider the fault of this "unknow n tortfeasor" as termed by the tri al- 4 -

court, we must then decide whether the trial court was correct in reallocating100% of the fault to Defendant Wal-Mart upon its consideration of Plaintiff's motion for a new trial. Finally, Defendant has ar gued that, regardless of the fault of an unknown p arty, the evidence does not support a finding of Wal-Mart's negl igence as there is no pr oof that Wal-Mart had constructive notice of the d angerous condition giv ing rise to Plaintif f's injur y.

II. Evidence of Ne gligence

We turn first t o Def endant’s contention that the trial court erred in denying its motion for a directed verdi ct because there was no pr oof at trial from which
a jury could reasonably

infer that Wal-Mart's conduct was negligent. A directed verdict is appropriate when the evidence supports only one conclu sion. Williams v. Brown , 860 S.W.2d 854, 857 (Tenn. 1993). Howev er, "[a] case should go to the jury, even i f the facts are u ndisputed, if reasonable pe rsons could draw con flicting i nference s from the facts." Underwood v. HCA Health Ser vs. of Tenn., In c. , 892 S.W.2d 423, 426 (Tenn. Ct. App. 1994) (citi ng Sauls v. Evans , 635 S.W.2d 377, 379 (Te nn. 1982)). The jury is permitted to reasonably infer facts from circumstantial evidence, and these inferred facts may be the basis of further i nferences of the ultimate fact at issue. Benson v. H. G. Hill Stor

es, Inc. , 699 S.W.2d 560, 563 (Tenn. Ct. App. 1985) (citations omitted). "An inference is reasonable and legitimate only when the evidence makes the existence of the fact to be inferred more probable than the nonexistence of the fact." Underwood , 892 S.W.2d at 426. On th e other hand, the jury is n ot perm itted to engage in conjecture,speculation, or guessw ork as to which of tw

o equallyprobable inferences is appli cable. Stringer v. Cooper , 486 S.W.2d 751, 756 (Tenn. Ct. App. 1972).

"Where t here has been a verdict for the pl aintiff approved by the Trial Judge, in considering a defendant’s motion for a directed verdict the Court of Appeals must look at all the evidenc e, construe it most favorabl y to the plaintiff, take the- 5 -

pla intiff’s evidence which supports his theory as true, discard all countervailin g evidence and indulge all reasonable i nferences to uphold the verdic t." Martin v. Washmaster

Auto Ctr., U.S.A.,946 S.W.2d 314, 316 (Tenn. Ct. App. 1996) (quoting Tennessee

Liquefied Gas Corp. v. Ross , 450 S.W.2d 587, 58 8 (Tenn. Ct. App. 1968)). Pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure,this court’s responsibility is

to determine whether there is any material evidence to support the verdict. We thus review th e proof in its most favorable l ight to Plaintiff to determine whether there exist s any material evidenc e to s upport the jury's verdict against Wal Mart.

The undisputed proo f s h ows that th ree-year- old Mitch ell Brown accompanied his mother and sister into Wal-Mart's vestibule where he slipped on ice spilled from a cup from Wa l-Mart's self-service drink dispenser. Mark Morgan, who
was the assistant manager at the Wa l-Ma rt at the tim e of the incident, testified that though Wal-Mart' s policy was to l imit drinks to the snack a rea, he was aware that customers carried th eir drinks throughout the store. He stated that it was economically impossibl e t o assign an employee to eac h customer to ensure that drinks not be carried througho ut the sto re. Wh en questi oned abo ut this po licy, Kevin Brewer, a Wal-Mart employee who was on duty at the time of the accident, testified that he had never

stopped anyone from coming out of the snack area and that if he did "go up to somebody to to [ sic] tell them to go back and sit down, [he] could get fir ed." Mr. Morgan testified that there was no policy against customers purchas ing drinks and exiting the store with these drinks either through the vestibule or another of the exits.
Mr. Morgan stated that Wal-Mart employees were tr ained to be on the lookoutfor dangerou s condition s. Th e manag ement awarded the employees w ith moneyraffles when they went for periods of time without acc idents. In addition, there
was in place a safety sweep program in which each associate was responsible to checkhis area for paper, popcorn, or other hazards app roximately every thirty- 6 -

minutes. Mr. Morgan testified that Kevin Brewer w as the associate responsibl e for the vestibule at the time of the incident. Accor ding to Mr. Morgan, Mr. Brewer was to checkfor dangerous c onditions every tim e he brough t shopping carts in from the outside parking lot.

Mr. Brewer also testified at trial that the vestibule was one of his main responsibilities. His duties in the ve stibule included making s ure that no thing was spilled, that all the trash was picked up and that there were no hazards. He said th at, in the afternoon, he came in andout of the vestibule every five minutes or less w ith shopping carts and was continually on the lookout for spills. Mr. Brewer testi fied that he had been through the vesti bule "p robably within the last five minutes" preceding Mitchell Brown's fall. He did not see the ice on the floor until after the child had fallen, at which time he cleaned up the i ce. It was Mr. Brew er's opinion that the ice cubes had not been there very l ong as "they wer e still in i ce form . . . still real ha rdened." W hen opp osing counsel pointed out se veral times that Mr. Brewer had not testified this way the first time this case was tried, he responded that he did not remember how he previously testi

fied.

Lisa Brown, Mitchell's

mother, testified that she entered the W al-Mar t and immediately proceeded to the p ay phone in thevestibule to call her husband. As she walked to the phone, she saw a Wal-Mart employee open the door from the store to let an elderly customer into the vestibule. While at the phone, she noticed that her children were standing in the middle of the ice at which ti me she bec koned th em toward her warning them to be careful. It was at this time that Mitchell fell.

While business proprietors, s uch as Wal Mart, are not insurers of their patrons’ safety, they are requ ired to use due care under all circumstances. Smith v. Inman Realty Co. , 846 S.W.2d 819, 822 (Tenn. Ct. App. 1992). In order for an owner or operator of premises to be held lia ble for negligence in al lowing a dangerous or defect ive conditio n to exist o n its prem ises, it m ust be sho wn that the condition (1)- 7 -

was caused or created by the owner, operator, or his agent, or (2) if the condition was creat ed by s omeone other than the owner, oper ator, or his agent, there must be actual or constructive noti c e on the part of the owner or operator that the condition existed prior

to the accident. Ogle v. Winn-Dixie Greenville, Inc. , 919 S.W.2d 45, 47 (Tenn. Ct. App. 1995); Jones v. Zayre, Inc. , 600 S. W. 2d 730, 732 (Tenn. Ct. App. 1980). Constructive know ledge can beshown by proving the dangerous

or defec tive condition existed for such a length of time that the defendant, in the exe rcise of reasonable care, shoul d have become aware of such condition. Simmons v. Sears, Roebuck and Co. , 713 S.W.2d 640, 641 (Tenn. 1986).

Because the record below is devoid of pr oof that Wal-Mart either created
or had actual notice of the dangerous condition giving rise to Mitchell Brown's injury, negligence must rest on a finding that Wal-Mart had constructive notic e of the fact that the ice was on the floor in the vestibule. While this is certainly a close case, we find that there is material evi dence to support the verdict. The jury could have reasonably inferred from certain circums tantial evidence that

Wal-M art emplo yees shou ld have known of the dangerous conditio n . Ms. Brown testified that she saw a Wal-Mart employee open the door betwee n the store and vestibule just prior to Mitchell's fall. Though Mr. Brewer stated that he had p assed through the vestibule within the past five minutes, we think the jury could have inferred that the danger ous condition was apparent but had been overlooked by the Wal-Mart employee.

III. Phantom Tortfeasor
McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992), was the landmark decision in which our supreme c ourt adopted a modified form of comparativ e fault. The grand principle ad opted in McIntyre was that a "particular defendant will henceforth be liable onlyfor the percentage of plaintiff’s damag es occasioned by that defendant’s negligence . . . ." Id. at 58. With regard to nonparties, the court made the following statement:- 8 - [F]airness and efficiency require that defendants call ed upon to answer

allegations in negli gence be permitted to allege, as an affirm ative defense, that a nonparty caused or contributed to the injur

y or damage for which recov ery is sought. In cases where such a defense is r aised, the trial court shall instruct the jury to assign this nonparty the percentage of the total negligence for which he is responsible. However, in order for a plai ntiff

to recover a judgment against such additional person, the plaintiff must have made a timely amendment to his comp lai nt and caused process to be served on such additional person. Thereafter, the additional party will be requir

ed to answer the amended complaint.The proceduresshall be in accordance w ith the Tennessee Rules of Civil Procedure. Id.

From the trial court 's final order, it can be inferred that the court made
a post-trial determination that McIntyre allows the jury to assign fault to an unnamed tortfeasor

onlywhen that tortfeasor is k nown to the defendant and can, itself, be sued and held responsible for its por tion of the judgment. The trial court thus found that the allocation of 70% fault to the unknown tortfeasor who may

have spilled the ice was in error. We agree for reasons hereinafter s tated.

In the wake of Tennessee ' s adoption of comparative negl igence, our
cou rts have bee n left with the task of restr ucturing our negligence law in a manner consistent

with this new sc

heme of comparative fault. See, e.g. , Owens v. Truckstops of Am. , 915 S.W.2d 420 (Tenn. 1996) and Bervoets v. Harde Ralls Pontiac-Olds, Inc. , 891 S.W.2d 905 (Tenn. 1994) (cases in w hich the supreme court address ed issues of contribution, joint and sev eral l iability an d indemn ificatio n in light o f compa rative fault). An issue left unresolved by the courts is the appor tionment of fault to a "p hantom tortfeasor" -- "[a] person or entity whose negl igence contributed to th e plaintiff's injury but who w as not joined as a defendant . . . because his or her

identity is unknown." 2 Arthur Best, Comparative Negligence § 13.20 (1997). While the postMcIntyre decisi ons hav

e not specifical ly addr

essed th e issue of a phantom tortfeasor,
our supreme court has dealt with the similar issue of a nonparty who could not be joined because it was immune from suit. Ridings v. R alph M. Parsons Co. , 914- 9 -

S.W.2d 79, 80 (T enn. 199 6). In so d oing, we believe that the court retreated from its grand principle stated in McIntyre and espoused the policy of allowi ng the plaintiff to
recover all of his or her damages from d efendants nottotally at faul t when the plaintiff could not sue the other tortfeasor.

In Ridings , the court addressed the issue of whether the defendants in
a suit based on negligence and strict liability could assert as an affirmative defense that the plain t iff's employer caused or contr ibuted to the plaintiff's injuri es and damages, notwithstanding the fac t that the employer was immune from liability because the injuries were c overed by the work

ers' compensation law. The defendants argued "that excluding the plaintiff's employer from those persons to whom fault may be attributed violates the McIntyre principle that defendants will be 'liable only for the percentag e of a plaintiff's damages occasioned by that def endant's negligence.'" Ridings , 9 14 S.W. 2d at 80 (quoting McIntyre, 833 S.W.2d at 58). It was th e defendants' pos ition "that fault can be attributed to the employer, and the liabili ty of the defendants can be decreased accordingly, without the imposition of liability upon the employer." Ridings , 914 S.W.2d at 81.

T h e supreme court disagreed w ith the defendants finding that the "rationale of McIntyre postulates that fault may be attribut ed only to those persons against whom the plaintiff has a cause of action in tort." Id. The court reasoned that when the McIntyre court stated that "fairness and efficiency re quire that defendants called upon to answer alle gatio ns in negligence be per mitted to allege, as an affirm ative defense, that a nonparty caused or c ontributed to the injury

or damage for which recovery is soug ht," it meant only those nonpart ies "ag ainst w hom the pl aintiff has a cause of action." Id. at 81-82 (citing McIntyre, 833 S.W.2d at 58). The court concluded that "[l]imiting the parties to whom fault may be attributed to those subject2 The court may have limited the reach of Ridings in the subsequ ent case of Snyder v . LTG Lufttechni

sche GmbH , 955 S.W.2d 252 (Tenn. 1997). Presented with a similar situation invol ving the introduct ion of eviden ce of an imm une em ployer's neg ligence, the court "dec lin e[d] the defendants' invit ation to reverse Ridings ." Id. at 256. However it h eld "t hat products l iabil ity defendants i n a suit f or personal injuri es based on all egations of negligence and strict liabi lit y in t ort may int roduc e relevant evidence at

trial thatthe plai ntiff 's employer' s alteration, change, improper maintenance, or abnormal use of the defendant's product was the cause in factof the plaintiff's injuries." Id. at 256- 57 (e mp has is added). While "the defendant s may not take the legal positi on that th e employer's actions were the legal cause of the p laintiff's injurie s," it could int roduce evidence sho wing said act ions to be t he cause in fact as the jury "m ay consid er all evidenc e relevan t to th e event leadi ng up to the i ncident t hat inj ured the plaintiff." Id. at 257. - 10 - to liability, accompli shes the policy objectives of fairness and efficiency." Ridings, 914 S.W.2d 83. 2

In so hold ing, the Ridings court did not preempt the possi bility that a defendant's fault might be reduced by the fault attri butable to a nonparty so long as that nonparty was subject to liability. Noting that "the plaintiff will bear the loss for any liability that it fails or is unable to assert and any judgment that cannot be enforced," the court cited a medical malpractice case in which the jury appor tioned 10% of the liability to the plaintiff, 45% to the defendant and 45% to a non-resident physi cian who
was not a party to the suit

. I d. at 83 (citing Volz v. Ledes , 895 S.W.2d 677 (Tenn.1995)). The supreme court in Volz affirmed the judgment against the de fendant for45% of the tot al damages. Regar ding Volz , the Ridings

court commented t hat "[e]ven though the plaintiff had a cause of action against the non-resident tortfeasor, that cause of action was not asserted and the pr oportion of the loss attributed to that defendant was borne by the plai ntiff." Ridings , 914 S.W.2d at 84 n.9 (citing Volz , 895 S.W.2d at 680).

In Turner v. Jordan , ___ S.W.2d ___ (Tenn. 1997), the court announced another principle limiti ng the ability of a defendant to shift some of the responsibil ity fora plaintiff’s injuries to another defendan t whose actions were a major cause in fact of the harm. In Turner , t he harm was inflicted by the i ntentional acts of a mental patienthospitalized under the care of a psychiatrist. The plaintiff, a nu rse on duty in the hospital, s ued th e psychiatrist for faili ng to impose restraints o n the patient that would have prevented the attack. The doctor pled comparative fault under Rule 8.03 of the Tennessee Rules of Civ il Proced ure, and the trial judge i nstructed the jury to- 11 -

apportion the fault between the doctor and the patient. On appeal, the supreme court held that "the conduct of a ne gligent defendant should not be c ompared with the intentional conduct of another in determining comparative fault where the intentional conduct is the forseeable risk created by the neg ligent tortfeasor." Id. slip op. at 17.

We th i nk this

case re present

s anothe r principle li miting the abil ity of a defendant to shift responsibility for a plaintiff’s injuries. The important thing is the ice spilled out and created a dangerous condition that, according to the jury, the premises
owner should have discovere d and elim inated. Under those conditio ns the owner should not be able to attribute any of the fault to the so ca lled "phanto m tortfeasor" unless the owner can prod uce clear and convincing evidence of the phantom’s existence.
Compara tive fault is a n affirmative defense, see Rule 8.03 , Tenn. R . Civ. P.; therefore a defendant wishing to escape part or all of the resp onsibi lity for the plaintiff’s injuries must plead "the ide nti ty or description of any other alleged tortfeasor." Id. If then, the plaintiff wishes to name the other tortfeasor(s), s ection 20-1-119 of the Tennessee code provides the framework for

extending the action to the others iden tifie d by the original defendant. The same code section provides a ninety day window to

name the additional defendants if the statut e of limitations as to them has run or is about to run.

Where the original defendant cannot i dent ify or d escribe the other alleged tortfeaso rs, however , the original plainti ff will not be able to join them and require them to answer for their s hare of the plaintiff’s injuries . In tha t case , the plainti ff can admit or deny the existence of the "phantom tortfeasor(s)," if req uired to do so by the court under Rul e 7.01 of the Rules of Civil Procedure; b ut, in any event, the burden of proof will remain on the original defendant to establish that part of the responsibility

for the plaintiff’s injuries shoul d be shifted to theunknown tortfeasor(s). Since the phantom tortfeasor defense can be easil y a bused, we think the orig inal defendant should be required to pr ove t he existenc e of a third party whose fault- 12 -

contributed to the plaintiff’s injuries by clear and convincing evidence. It follows that, prior to trial, plaintiffs should be permitted to test the st rength of the defendant’s evidence of the existe nc e of a phantom tortfeasor using either a motion for partial summary judgm ent or motion in limine. If the defendant cannot p roduce clear and convincingproof of the existence of the phantom tortfeasor, the trial court should not permit th e evidenc e or comm ent bef ore the ju ry.

Since Wal-Mart did not identify the other tortfeasor and did not prove the existence of another tortfeasor by clear and convincing evidence, we think the trial judge correctly at

tributed all the fault to the or iginal defendant.

Cases involving unknow n tortfeasors have arisen most often in the context of uninsured motor vehicle coverag e. See, e.g., Bruno v. Blankenship , 876 S.W.2d 294, 296 (Tenn. Ct. App. 1992). Tennessee law provides that an insured can
r ecover under his or her uninsure d motorist policy for damag es caused by an unknown dr iver if "[a]ctual phys ical contact shall hav e occurred between the motor vehicle owned or operated by su ch unknown person and the pers on or property of the insured; or . . . [t]he existenc e of such unknown motorist is established by clear a nd convincing evidenc

e, other than any evidenc e provided by occupants in the insured vehicle." Te nn. Code Ann. § 56-7-1201(e)(1)(A) & (B)(1997 Supp.). Though this statute acknowledges the fault of an un known party, it does not involve the apportionment

of fault among joint tortfeasors. Thus , we clarify that our opinion has
no bearing on the laws wh ich gov ern insurance coverag e for damages caused by unknown motorists.

IV. Trial Court's Restructuring of the Jury Award

Now that we have determined that the trial court correctly concluded that the jury should not

have considered the potentia l fault ofan unkno wn tortfe asor, we must decide whether the court appropriately remedied thi s error. As stated, Plaint iff,- 13 -

citing the jury's consider ation of an unknown tortfeasor, fil ed a motion fora new trial which was denied by

the court. However, in overruling said motion, the court asserted its satisfaction with the jury's monetary award and order ed that this award remain in tact. The court thereby effectively ordered that 100% of the jury's monet ary award be paid by Defendant Wal-Mart.

Defendant argues that the court had no authority for its ac tion for the following reasons. First, neither party requested the relief gr anted by the court. Defendant contends that while the Rulesof Civil Pro cedure a llow the co urt, on it s own initiative, to alter

or amend a judgment, the court did not do so within the prescribed time period of 30 days. Tenn. R. Civ. P. 59.05. Nex t, Defendantcontends that there
never was a judgment in the amount of $2,625.00. Finally, Defendant argues that the trial court is not permi

tted to reallocate percentag es of fault as found by the jury.

Initiall y, we rejectDefendant's first argument. Tennessee Rule of Civil Procedure 59.05 empowers a court to "o n its own initiativ e . . . alter or amend the judgment." As for the timel iness of this motion, Pl aintiff

did file a motion for new tri al within thirty

days of the entry of the judg ment as prescribed by Rul e 59.02 of the Rules of Civil Procedure. Almost seven months after the motion for new trial was filed, the court issue d its final order directing that Defendant pay 100% of the amount of damages determined by the jury . As stated, the rules prov ide that acourt may alter
or amend a judgment on its own in itiative wit hin thirt y days afte r entry of tha t judgment. Tenn. R. Civ. P. 59. 05. The qu estion be comes whe ther, in li ght of a ti melyfiled motion for new trial, the thirty -d ay period for the court to al ter or amend the judgmentwas tolled. Based upon the guidance we rec eive from this court's opi nion in Grissim v. Grissim , 637 S.W.2d 873 (Te nn. Ct. App. 1982), we hold that it was.

In Grissim , each pa rty file d a timely motion to alter or amend the trial court's order. Almost four months after the pa rtie s' motions were filed, the court- 14 -

overruled said motions and, at the same time, granted a new trial on its own i nitiative. On appeal, the appellant made the follow ing argument: [T]he power of a Trial Judge t o grant a new trial on his own motion e xpires thi rty (30) days after entry of judgment and that such power

is not extended by post trial motions exceptto the ex

tent of th e relie

f r equest ed in such motions. That is, if no new trial is req uested in a post trial motion, then no new trial may be granted more than thirty (30) days after judgment. Id. at 874. However, the court of appeals disagreed citing the "long established public policyof this State favoring the oppo rtunity to correct j udi ci al actions by appeal or otherwise." Id. at 875. The court reasoned as follows:

[I]f part of a judgment is challenged by a post tr ial motion an d t he power of the t rial court is extend ed to change such chal lenged p art, then the trial court has not finally adjudicated all ofthe claims, rights and liabilities; and, the judgmentis subject to revision (in clud ing setting aside) before entry of final judgment adjudicating all c laims, rights and liabilities of the parties. Id.

In an unpublished opinion of this c ourt, th e rule o

f Grissim was extended to a situation which is procedurally l ike the case at bar. General Elec. Credit Corp. v. Allen & Bean, Inc. , No. 87-165-II, 1987 WL 19311 (Tenn. Ct. App. 1987). In General Electric , the court denied plaintiff's motio n for a new trial, and at th e s am e time, altered the judgment agai nst the defendant. Id. at *2. Though this sua sponte alteration occurred outside of the thirt y days following

the judgment, thecourt held that "[w]hile the procedural situation in the present case is the reverse of that in Grissim , underthe reasoni ng of Grissim , it would appear that a motion for new trial w oul d preserve the power of

the Trial Court to alter or amend." Id. at *3. We therefore hold that in the case at bar, Plainti ff's motion for a new

trial effectively pr

eserved the power of the court to alter the judg ment as it did.

Defendant next argues that the tr ial court is not permitte

d to reallocate percentagesof fault as found by the jury. We agree. See Turner v. Jordan , ___ S.W.2d ___ (Tenn. 1997). But we think Turner is inapposite because this is not a- 15 -

situation in which the court was usurping the jury's role as fact finder by reallocating percentagesof fault. We recognize that the allocation of fault is a factual question for the jury. Howev

er, in this case the court was not determining the factual question of the percentage

s of fault. Rather, the cour t was assi gning 100%

of the dama g es assessed by the jury to Defendant i n light of the legal conclusion

that Defendant's fault could not be shared with an unknown tortfeasor.

In the case at bar, there is a signific ant distinction between th e legal issues and the fa

ct issu es, the l atter of which involv e the existence

of W al -Mart's negligence and the amount of Plaintiff's damages. The jury made these factual determinations, and then the court made its post-trial decision that blame should not have been shifted to an unknown tortfeasor, based on the legal conclu sion t hat the parties to whom fault may be attributed should be limited to those subject t o liability. It was pursuant to this l egal finding that the court amended t h e judgment such that Defenda n t Wal-Mart was responsible for 100% o f the damages determined by the jury. While we do not endorse completely the trial judge’s legal conclusion, we think he reached the right resul t in this case.

F inally, we turn to Defendant's asser tion that there never was a judgmentin the amount of $2,625.00. There is no basis for this argument, for in the final judgment the court stated that "[t]he jury fur ther found t hat the total amount of d amages sustained by plaintiff wa s $2,625.00." It is true that the court ordere d Defendant to pay

only $787.50 because it ass igned Defendant only 30% of the fault. However this does not change the jury's finding with regard to Plaintiff’s damages.

V. Conclusion

In light of the proof presented at trial and the inferences that can be drawn therefrom, we conclude that th ere exists material evidence to support the jury's verdict against Wal-Mart. In additio n, we affir m the trial court's finding that the lawprecludesthat fault be attributed to an unknow n party in this case. Finally, in lig ht of
a jury finding which conflicted with this legal conclusion, the lower court did not err in altering the judgment s uch th at Defendant be responsible for 100% of Plaintiff's damages. Tax the costs on appeal to W al-Mart Discount Cities.

__ _____________________________ _ BEN H. CANTRELL, JUDGE CONCUR:

______________________________ WILLIAM C. KOCH, JR., JUDGE

_______________________________ WALTER W. BUSSART, JUDGE