### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
June 6, 2002

Session
RUSSELL M. LIP SEY, Individually and d/b/a SECUR ITY WATCH and SECURITY WATCH, INC.

v. PROTECH FIRE S YSTEMS, INC. and JERRY PANNELL

Appeal from the Circuit Court for Shelby County No. 69579-3 T.D. Karen R. Williams, Judge

No. W2001-01785-COA-R3-CV - Filed Marc h 17, 2003

This is a negligence

case. The owner of a

three-story

historic building was remodeling it. He called
a fire sprinkle

r compan y to move a sprinkler pipe. The repairman cut one of the sprinkler pipes and, thinking it was a “dead pipe,” pushed it behind some sheetrock withou t capping it. The sprinkler system was reg ulated by an air c ompresso

r that filled the pi

pes with pressurized air until the system was triggered

to allow water to flow through the pipes. The repairman left before the c ompressor complete ly charged the sy stem, that is, before the air pressure reached the required level to hold the water back. Two days later, w ater began rushing out of a sprinkler pipe, causi ng ext ensiv e damage to the building. T he owner sued the f

ire sprin kler com pany for dama

ge to the building and its contentsas well a s for inte rruption of his busi ness. At the tr ial, there was conflicting testimony about whether the wat er came out of the pipe that the repairman cut or whether it came out of
a nother pipe. The jury found tha t both parties were zero percent responsible; thus, the owne r recovered no damages. The owne

r moved f

or judgment notwithstanding the verdict or for a ne w trial. B oth motions w ere den ied. The owner a ppeals, a nd we af firm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

H OLLY K IRB Y L ILLARD , J., deliver ed the opinio n of t he court, in which A LAN E. H IGHERS , J., and D AVID R. F ARMER , J., joined.

Edward M. Bear man, Memphis, Tennessee, f or appellant, Russe

ll M. Lip sey , Ind

ividually and d/b/a Security Watch and Secur ity Watch, I

nc.
John R. Cannon, Jr., Memphis, Tennessee, for appe lle es, Protech Fire Sy stems, Inc. and Jerry Pannell.1 Lipse y and S ecurity W atch, Inc . are he reinafter collec tively referr ed to as “Lip sey.”

2 Panne ll was Protech’s em ployee, and both were represented by the same co unsel at the trial court. Becau se of thi s, and becau se the ir ar guments at the tri al l evel wer e ident ical , we ref er to Prote ch and Pannell collec tiv ely a s “Protech. ” When referri ng solel y to Pannel l, we use onl y his name. 2 OPINION Plaintiff/Appellant

Russell M. L

ipsey (“L ipsey”) owns a

three-story

building at

85 S. Second street in Mem phis , Tenn essee. The fi rst fl oor of the bu ildi ng w as leased as retail space to an art ga ll er y. Lipsey ’s alarm sales company , Security Watch, I nc., 1 and his alarm monitoring company
were housed on the second story of the building, and the thirdfloor was an apartment that was to be Lipsey ’s future home. Both the second and third floors were being remodele d. The building had a skylight on the roof. The ceiling of the third floor was a short distance from the roof, and there was
a boxed-in cube betw een the t h ird-floorceiling and the sky light. The cube had a fire sprinkler system pipe running across it. As part of the rem odeli ng, Lipsey

wanted to have the sprinkler pipe removed from the s kyl

ight.

The type of sprinkler sy stem that Lipsey ’s building had is known as a “dry” system. Water flows into the system from the street leve l. Most of the time, however, this water is kept at bay by
a flap t hat is forced shut by c ompressed air coming from an air compre ssor attached to the fire sprinkler pipe system. Th e a ir compressor, in the basement in Lipsey ’s building, fills the system withair. When

the air p ressure reache s a cert

ain level, the com

pressor shuts off. Although the system is conside

red “se aled,” in e vitably

it will have

minor air leaks, a nd the air compres sor will turn on and off from time to time to maintain the pressure in the pipes. B ecause

the air pressur e in the sprinkler system pushing down on the flap is higher than the pressure coming from the water at the street level pushing up at the flap, the flap remains shut . Whe n a fir e occur s wit hin t he bui ldin g, a plastic ring on a sprinkler head melts, allowing the compressed

air in the pipes to rush out at the location of the sprinkler

head. This results in the water pressure from below becoming greater than the air pre ssure wit

hin the sprinkler system; conseque ntly, the flap

opens, a llowing w ater to f

low into the system. The water

fills the sprinkler system’s pipes and begins rushing out from the place in the system where the

compressed air first escaped, usually the sprinkler head, dousing the fire.

To have the sprinkler pipe removed from the sky light for the remodeling, L ipsey called Defendant/Appellee Protech Fire Sy stems, Inc. (“Protech”) . On August 23, 1994, Prot ech sent its employee, Jerry Pannell (“Pannell”) to Lipsey ’s building to r em ove the pipe. 2 Panne ll, u sing a cutting tool, cut and capped the pipe on the east side of the sky light. Then, using a hacksaw, he cut the pipe on the west side of the skylight. In doing so, Pannell he ard some thing fa ll behind the

wall onto the i nsi de of the

ceiling . He then

pushed the

remaining pipe b ehind the sheetro ck wall surrounding the inside of the skylight. Panne ll believed that this p ipe was a “dead pipe” and, consequently, did not cap it.

Pannell then went

to the basement and turned on the air compressor to recharg e the sprinkler sys tem. Before the air compressor re ached the appropriate pressure f or Lipsey ’s system, Pannell left3

the building. Thus, when Pannell left, the sprinkler system had not finished filling with air, a nd he did not know whether the system ha d any leaks.

Some forty hours later , on August 25, 1994, two of Lipsey ’s employees wor king on the third floor below the skylight hear

d a “hissing” noise. They looked up to see water begin rushing out of the pipe that was on the we st side of the sky

light. Al though Pa nnell, two day s earlie

r, had be en able to shut down the sprin kler s ystem us ing a wheel valve in the basement, when L ipsey’s employ

ees attempted to do the same, they we re unable to do so. Fire tru cks and firefighters were dispatc hed to the building as water flowed from the ceiling of the third floor, through the sec ond and first flo ors, and eventua

lly t o the base

ment. The

fire de partmen t finally was able to sto p the wa ter flow by placing a special valve over the pipe and closing the va lve. The flooding caused significant damage s.
Su bs eq ue nt ly, Lipsey

filed this lawsuit against Protech, seeking $250,000 in damages for the damaged caused t o the building and itscontents , and $125 ,000 in da mages f or loss of business and business interruption. Lipsey later amended the complaint to seek $1,110,00 0 for loss of busine ss and business interruption, for total damages of $1,360,000. L ipsey asserte d that Protech neglig ently caused the fl oodi ng, and also plead the doctrine of res ipsa loquitur . In it s answer, Protech asserted comparative fault, a

rguing that L ipsey ’s employ

ees wor king in the vicinity of the pipes nea r the time of the accident had at least some responsibility for the flooding.

The jury trial beg an on January 16, 2001 and lasted seven day s. Pannell attended the trial but
was not calledto the witness stand by either pa rty. Portions of his videotaped deposition, however , were played for

the jury . In h

is depositi on, Panne

ll testifie d that he w as not aw are of a ny r ule about the length o f time he w as to stay at the cu stomer’ssite afte r re-e ngag ing the s prinkler

sys te m
. Pannell noted that, at the time he left Lips ey ’s building, the sprinkler system r ead an air pressure betweentwenty-seve

n and twenty-e

ight pounds per square inch (“p.s.i.”). When Pannell visited the site after the accident, the pipe that he cut on the west side of the skylight was no longer there. There
was a pipe, however, attached to the ceiling farther back. Th us, a port ion of pipe

approxima

tely six feet long, e xtending f

rom wher e Pannell origina lly c ut the pipe

to the now-ex isting pipe, was missing. Lipsey testifie d that, on the day of the incide nt, he was summoned to the building. When he arrived, he went t

o the thir d floor and saw water coming out of a pipe tha t was cut and was up agains t the plac e where , prior to the incid ent, ther e had be en sheet

rock ar ound the sk

ylig ht. Earl Beck (“Bec

k”) and Larry

Holloway (“H olloway”), c onstruction workers employed by Lipsey to do sheetrock work on thebuilding , both testified at the trial. Beck testified that the plaster aroundthe skylight

cube wa s deterio

rating . Conseque

ntly , prior to

the time Pa

nnellcut the pipe, he and Holloway installed

wood supports around the skylig ht, and then attached new sheetrock on top of the old plaster, cutting the sheetrock around the pipe. They planned to pa tch the holes left by the pipe after Pa

nnell fin i shed removing it. On the day Pannell came to remove the pipe, Beck saw Pannell cut the east side of the pipe and put a cap or a plug on the pipe. As to the west side of the4

pipe, Beck did not see whether Pannell unscrewed or cut the pipe, but he saw Pannell shove the west side of the pipe back behind thesheetrock wall. Beck asked

Pannell a bout this pip e. I

n respons e to Beck’s inquiry , Pannell t

old Beck that the

pipe on the

west side was “dead” and

did not need to be plugged. Beck noted that the next day , Wednes day, while he was down in the basement, the sprinkler sys tem a ir compre sso r was running. The following day , Thursday, af ter water began coming out of the p ipe near the sk ylight, Be ck went to the basement with another of Lipsey ’s employ ees, and neither

was able to cut off the water flowing thr ough the sprinkler sy stem pipes by using the wheel valve. Lipsey ’s employee Hollowa y testified that he was present during the conversa tion between Pannell and Beck regar

ding the “dead” pipe. After Panne ll left to go to the basement, Holloway
wo rkedon the third floor for the remainder of the day and did not see Pannell. Two day s later, Holloway was working underneath the sky light when he hear

d a hissing

sound. He

testifie d that, a few moments lat er, he sa w water shooting out of the

hole on the

west side of the sky

light. Whil e B eck we nt do wnsta irs t o try to s hut o ff the water, Holl oway clim bed a l adder a nd lo oked t hrough
an opening in the sheetrock. Holloway testifie d that he s aw wate

r spewing from the p ipe that Pa

nnell had pushed back

behind the

wall, and saw that t

he pipe ha

d cut mar ks on it. Ho lloway

said that he didnot work on the pipe in question from the time Pannell worked on the pipe until the time water began coming o ut of it.

Protech called as witnesses two firefighters who we re at the scene after the flooding be gan. Donald W. Powers ( “Powers ”) testif ied that, at t

he time of t he flood, the pipe he saw on the third floor expelling water

was a threaded pipe, and that he did not see any pipe with hac ksaw marks on it. He said that he could not turn off the water flow by using the wheel valve, and that the firefighters used a “coupler” to shut off the water. Firefighter

Michael Devore (“Devore” ) also testified. Devore was questioned about whether the pipe gushing water had a thre aded end or a regular e nd. Devore could not

recall whether it had
a threade d end, but

he testif ied that he did not remem ber seeing hacksaw marks on the pipe . He acknowledged that he had previously said that the pipe was threaded.

Both parties offered expert testimony. L ipsey’s expert was Alan Pearlman (“Pearlman”), a mechanical engineer. Pear lman testifie d that he h ad invest igated approxima

tely fifteen to twenty sprinkler sys tem failu

res. Pearlman first visited Lipsey ’s building on September 29, 1999, five y ears after the accident. In addition to visiting the building, Pea rlman read a report by

another engineer, reviewed depositio ns and doc

uments, a nd inspec ted a ten -foot por tion of spr inkler pip e that Pan

nell had removed from the skylight. Pearlman theorized that, contrary to Pannell’s belief

at the time, the pipe Pannell cut on the west side of the sky light a nd pushed behind the wall was not a dead pipe. Pearlman’s t heory

was that when the cut end of the pipe sprung bac k towards the inside of the sheetrock, it pu shed u p again st th e sheet rock wi th eno ugh force t o allow the

sys tem to susta

in some air pressure once the air compressor wa s engaged. He believed that, after some time, either moisture3 The trial also i ncluded considerable testimony regarding whether Lipsey actual ly intended to continue

growing his al arm busin ess and t he valu e of hi s lost

busines s because of

the i nterr

uption. Additi onally , th ere was mention o f Lipsey’s involvement in ano ther lawsuit in which Lipsey sough t the same dam ages. 5 or air passing through

the shee trock ca used the s heetroc

k to erode , allowing

the air in the pipe system to escape, resulting in water rushing through the pipe sy stem and coming out at the pla ce prev iously cut by Pannell.

On cross-examination, Pearlman acknowledged that he ha d taken no measureme nts and performed

no tests to s ubstantia

te his theor

y. Pe arlman a

lso acknowledged that he did not attempt to move the pipe, but

that if the pipe would not move, his theory would be inva lidated. Pearlman admitted that his theory was inconsisten t with the f irefighters’ earlier testimony that the pipe spewing water w as a thre aded pipe that was t

hree feet behind

the wall o f the sky

light.

Protech’s expert was Dr. William Janna (“Dr. Janna”). Dr. Janna wa s a profe ssor of mechanical engineering

and the Associate Dean

for Graduate Studies at the College of Engineering at the University of Memphis, and wa s wide l y published in the area s of fluid mechanics, heat transfer, and design of fluid thermal sy stems.

Dr. Janna reviewed depositions and reports, interviewed Pannell, took measurements at the accident site on his first visit in April 2000, and conducted experiments. He testified that the piping system was not flexible, and did not have a lot of “play ” in it such that it could be moved around. He criticize d Pearlma

n’s theor y because th

ere wa s no sheet

rock or w ood for th

e pipe to butt aga

inst. Dr. Janna said

that even if the pipe on the west side had abutted aga inst wood or sheetrock, it would notcreate enough resistance to allow the pipe system to fill with the requisite amount of compressed air. Dr. Janna tested this by using a piece of pipe approximately two and one-ha lf feet long, capping it on one end and then pushing the open end ag ainst

a piece of wood. Using an air compr essor, he forced air into the pipe to determine how much air it could hold. In a second experiment, he used
a hammer to

embed the

open end

of the pip e into the

wood. I n neither case did the pipe hol d upwards of twenty-e

ight p.s.i. of compressed air, the amount tha t Pannel l testifie d was the air pressure level when he left Lipsey ’s building. Rather, fifteen p.s.i. was the maximum pressure Dr. Janna could ach ieve. Dr. Janna testifie d that the

only way the sy stem could

have ch arged

up to twenty-eig

ht p.s.i. was if it had been completely sealed. 3

At the close of Lipsey ’s proof, Protechmoved for a directed verdict, arg uing failure to show causation. This motion was denied. At the close of Protech’s proof, L ipsey moved for a

directed verdict regarding L

ipsey’s compar

ative fault. This motion was also denied. The trial judge noted that there could be an inference that L ipsey was neg

ligent because neither Pannell nor Protech had been in the building between the time the flood started and the time when the firefighters arrived. At the close of Li psey ’s rebut

tal pr oo f, Lip se y again moved for a directed ve rdict, asserting that Protech had offe

red no pr oof of L ipsey ’s negl

igence . Protech

argue d that the

issue should go to

the6

jury b ecause the mi ssing pipe indicated that someone had removed a piec e of pipe, which then caused the fl ood. T he tri al jud ge deni ed Lipse y’s moti on, ex plain ing:

Inference s are the permitted bridges between one fact an d another or between fact s and a conclusion. . . . Thereare a number of facts that have been pla ced bef ore this jury by v arious wi

tnesses. Not all of

those fa cts can coe

xist peace fully , let alone all the inferences that can be drawn from it. But I think the jury is here to sort that out and I’m going

to let it go to the jury.

The jury then delibera

ted. The jury dete

rmined that Protech was zero percent responsible for the accide nt, and that Lipsey , likewise, was zero percent responsible for the ac cident. Lipsey moved for judgment notwithstanding the verdict or, in the alternative, a ne w trial. Lipsey

argued that he established his prima faci e case of negligenc e, and that Protechhad not r ebutted it. Lip sey

also argued that the jury’s ver

dict was not

supported by the g

reater weight of the evidence, and also that the trial court erred in failing to instruct the jury that they could draw

a negative inference

from Pannell’ s failure

to testify . The tria

l court de nied L ipsey ’s motions, stating

that

the Court approves the verdict of the jury and f

inds thatthere is competent, material evidence to support the verdict of the jury so that the Motion for Judgment N otwithstanding Verdict should be overruled, and that the evidence preponder ate s in favor of the Defendants so that the Motion for New Tria l should be denied. Lipse y no w appea

ls.

On appeal, Lipse

y a rgues t hat the tr ial cour t erred in deny ing his mo tion for ju dgme n t notwithstanding the verdict an d his motion fo r a new trial. Lipsey contends that the testimony of Lip se y, Holloway, Beck, and Pearlman, combine d with the presumption of res ipsa lo quitur and negligence per se , establish ed his prima facie case of negligenc e, and that inferences from the testimony of Protech’s witnesses we re not sufficient to rebut it.

The standard of review for a motion for judgment

notwithstanding the verdict is the same as that applied to a motion for

directed verdict made during the trial. Holmes v. Wilson , 551 S.W.2d 682, 685 (Ten

n. 1977). The cour

t ruling on the motio n is to review the record, construe the evidence in the ligh t most favorable to the non-moving party , allow all inferences in his favor, and remove a ny countervailing evidence. Eaton v. McClain , 891 S.W.2d 5 87, 590 (Tenn. 1994 ); see Holmes , 551 S.W.2d at 685; Tenn. R. App. P. 13(d). After assessing this information, the appellate cour t reverses the denial of the motion only if “re asonable minds could not differ as to the c onclusion s to be drawn from the evidence.” Eaton , 891 S.W.2d at 590. Thus, putting aside for the moment theevidence that sup ports a ve

rdict in f avor of t he moving

party , if the re

maining direct, circumst

antial, an d inferential evidenc e would te nd to uphold

a verdict in fa vo r o f t he no n- mo vi ng pa rt y, then the motion must be denied. Fye v. Kennedy , 991 S.W.2d 754, 765-66 (Tenn. Ct. A pp. 1998) . The app ellate court does not reweigh the evide nce, nor do es it reassess the credibility of witnesses, as it is the responsi bility of the jur y to assess the weight, faith, and cre dibility of each of the witnesses. Tenn.7

Dept. of Transp. v. Wheeler , No. M1999-00088-COA-R3-CV, 2002 Tenn. App. LEXI S 727, at *12 (Tenn. Ct. App. Oct. 11, 2002 ); see Shepherd v. Wal-Mart Stores, Inc. , No. W1998-00903-COAR3-CV, 2000 Tenn. App. LEXI S 218, at *9 (Tenn. Ct. App. Mar. 31, 2000).

We must also evaluate the application of the doctrine of res ipsa loquitur in this case. The fact that an accident or injury occurred does not normally give rise to a presumption that the defendant was neg ligent. Under the doctrine of res ipsa loquitur , which means the thing speaks for itself, the circumstances surrounding an ac cident or injury permit an infer

ence that the defendant was neglig ent, in the absence of an explanation from the defendant. 57B Am. Jur. 2d, Negligence § 1819 (1989). It applies when an ac cident is of such a nature that, in the light of common experience, the accident could not have occurred in the absence of negligence by

the defen dant. Id. §§ 1825-26. The doctrine of res ipsa lo quitur is a form of circumstantial evidence that permits, but does not compel, a jury to infer negligence based upon the cir cumstances of

an injury when direct evidence is not available. Seavers v . Methodist

Med. Ctr. , 9 S.W.3d 86, 91 (Tenn. 1999) (citations omitted). Even when the presumption is permitted, the plaintiff still must prove circumstances on which a jury might reasonably

rely to conc lude that the defendant was neglig ent. Id. “The weight of any inference to be drawn from the evide nce is for the determination of the jury .” Id.

The determination of

witness credibility clear

ly falls within the purview of the trie r of fact , here, the jury. Mill

er v . Wi llia ms , 970 S.W. 2d 497 , 499 ( Tenn. Ct. A pp. 19 98) (ci ting Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822, 823 (Tenn. 199 4)). “It is well established that when reviewing a judgment

based on a jury

verdict, appellate courts are limited to determining whe ther there is material evidence to support the verdict.” Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 898 (Tenn. 1 992) (citations omitted). Th e Tenne ssee Supr

eme Court

has held t

hat:

It is the t ime 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 d et ermining whether there is material evidence to support

the verd ict; and in

determi ning w hether there is material evidence to support the verdict, the appellate court is required to take the stron gest legitima te view of a

ll the evid ence in f avor of t he verdi ct, to assume the truth of all that tends tosupport it, allowing all reasonable inference s to sustain the verdict and to discard all to the co ntrary. H aving thus examined the record, if there be any material evidenc e to suppor t the ver dict, it mus t be aff

irmed; if it were otherwise, the pa rt ie s w ou ld be de pr iv ed of th ei r c on st it ut io na l r ig ht to tr ia l b y ju ry.
Crab tree Masonry Co. v. C & R Constr., Inc. , 575 S.W.2d 4 , 5 (Tenn . 1978) (citations om itt ed)

. Thus, if there is material evidence to support the jury verdict, the verdict will be affirmed. Lipsey ’s counsel asserts that the trial court erred in denying L

ipsey’s motion for judgme nt notwithstanding the verd

ict beca use L ipsey establish ed his prima faci e case of negligenc e and then Protech was unable to rebut it. Lipsey

contends that the theory

propounded by Protec

h’s expert, Dr. Janna, is nothing

more tha

n a hy pothetic al based o n assumed facts, and that the inferences8

presuma bly made by the jury

after listening to the firefighters’ testimonyare in di rect opp osition to th e u nc on tr ad ic te d t es ti mo ny o f H ol lo wa y.
In this case, there was clearly conflicting testimony a

boutwhat occurred

the day the wa

ter began flooding Lipse y’ s building . The jury

was req uired to assess the credibility of the witnesses proferred by both parties. The testimony from Lipsey ’s witnesses tendedto establish that the water began coming out of the pipe that Pannell, believing the pipe was “de ad,” cut and did not cap. However, in revie wing wheth er there w as material evidence to support the jury ’s verdict, we consider the evidence in the light

most favorable to Protech. The firefighter s testified that the pipe from which the

water w as flowin g had th read ma rks on it, and that the threaded pipe was a few f eet back from the wall of

the skylight, indicating

that a portion of the pipe was missing. This missing pipe was never recovered. B oth parties offered the testimony

of expert witnesse s. The testimony of Protech’ s expert, Dr. Janna, i s clear ly sufficient for the jury to conc lude that the theory of Lipsey ’s expert, Mr. Pearlman, had been discredited. This evidence is suff icient for the jury to conclude that the pipe fro m which the

water bu rst forth was not the

pipe that Pa n nell cut, and that therefore, Protech was not responsible for the flooding. Lipsey argues that

a prima faci e case of negligenc e was established under the doctrine of res ipsa loquitur . Assuming arguendothat this was the case, the evidence was sufficient to rebut any presumption that the accide nt resulted from Pan

nell’s ne glige

nce. Und er all of these ci rcumstan ces, we mu st concl ude that the trial court did not err in deny ing Lipsey ’s motion for judgment notwithsta

nding the verdict

. Lipsey also arg ues that th

e trial c ourt err

ed in denying his motion for a new trial, contending that t he tri al jud ge did not properly actas the thirteenth juror. In acting as the thirteenth juror, the trial judge independently

evaluates the evidence and assesses the credibility of witnesses, and does not give deference to the jury ’s determinations. Fye v. Kennedy , 991 S.W.2d 754, 766 (Ten n. Ct. App. 1998). If the trial judge finds that the preponderance of the evidence goes against the jury verdict , he is required to set aside the verdict and gr ant a new trial. Id. ; see also Ridings v. Norfo lk S. Ry. Co. , 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994).

A motion for

new tria l is reviewed on ap

peal by determin ing whe ther the trial judg e proper

ly acted as the thir

teenth juror. Woolfork v. Hampton Inns, Inc. , C.A. No. 02A01-9411-CV-00266, 1996 Tenn. App. LEXI S 72, at *2 (Tenn. Ct. App. Feb. 7, 1996). Here, th e trial ju dge’s c omments show clearly tha

tshe evaluat

ed the ev idence independ

ently and acted approp

riately as the thir

teenth juror. Lipsey

argue s next that th

e trial c ourt err

ed in dec lining to

give the jury a mi ssing wit

n ess instruction based on Pannell’s failure to testify . The missing witness instru c tion permits the inferencethat

a witness ’s testimo ny w ould be ad verse to the part y th at faile d to call

the witness when the witness is available and possesses “peculiar knowledg e concerningthe facts essential to a party ’s
case . . . espe cially

if the witn

ess would naturally be favorable to the party ’s contention . . . .” T.H. Eng’g & Mfg. v Mus

sard , No . E2 001 -02 406 -CO A-R 3-C V, 2 002 Ten n. A pp. LEXIS 367, at *10-119

( Tenn. Ct. App. May 23, 2002) The missing witness rule, however, is “inapplicable w here th e witness w as equally a

vailable to both parties and it seems no more likely tha t his testimony would favor the plaintiff than the defendant.” Bland v. Alls tate Ins. Co. , 944 S.W.2d 3 72, 379 (Tenn. Ct. App. 1 996) ( citi ng Waller v. Skeleton , 212 S.W.2d 690, 697 (Tenn. Ct. App. 1948)).
Here, the evidence does not indicate that Pannell’s knowl edge w as mo re favorable to one party or the other. Mo

reover , Pannell w as at the trial on e ach day

and was a

vailable to be calle d to testify by L ipsey as well a s Protech . This arg ument is without meri

t.
Ac co rd in gl y, we conclude that the trial court did not err in deny ing Li psey’s motion for judgmen t notwithsta

nding the verdict , nor in de

nying L ipsey ’s motion f

or a new trial.

The judgmen

t of the tr ial cour t is affirmed. Costs are taxed to ap pe ll an t, Ru ss el l M . Li ps ey, Indivi dually

and d/b/a Security Watch and Sec urity Watch, I

nc., and their surety , for which execution
ma y is su e, if

ne ce ss ar y.

___________________________________ HOLL Y KIRBY L

IL LARD, JUDGE