# FILED
September 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON PEGGY STRICKLIN ARNOLD, ) and EDWARD L. ARNOLD, ) ) Plaintiffs/Appellants, ) Shelby Circuit No. 61907 T.D. ) VS. ) Appeal No . 02A01-9803-CV- 00075 ) DEHONEY BISHOP INTERIORS, ) INC., d/b/a DEHONEY INTERIORS, )

) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF SH ELBY COUN TY AT MEMPHIS, TENNESSEE THE HONORABLE KAY S. ROB ILIO, JUDGE

MICHAEL S. LONG LONG, UMSTED & JONES Memphis, Tennessee Attorney for Appellants

THOMAS L. B RANNON McWHIRTER & WYATT Memphis, Tennessee Attorney for Appellee

REVERSED AND

REMANDED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

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

RMER, J. Plainti ffs Peggy Strickli n Arnold and Edward L. Arnold (her einafter referred to as2

“Plaintiff” or “Plaintiffs”) appeal the trial court’s order granting summary judgment in favor of Defendant Dehone

y-Bis hop Inte riors, Inc. (h ereinaft er refe r red to as “Defendant” or “Dehoney”). For the reasons hereinafter stated, we hereby reverse the judgment of the trial court and remand this case for trial.

I. Factual and Procedur al History

In October of

1993, Bowden Building C orporation was the gener al contractor for

a model home constructed at 2275 Lake Spri ngs Lane in Cordova, Ten nes see. Dehoney Bishop Interiors was a subcontractor hi red by Bowden to instal l carpet in the model home. Bowden is the owner and manager exercising exc

lusive control ov

er the home. Bowden’s models serve as a visual depiction of the style and layout of a home built by the Bowden Building Corporation.

On October

17, 1993, Pla intiff Peggy Stricklan d Arnold vi sited the sa id model home which was open to the public. S he was wearing R eeb ok running shoes at the time. Ms. Arnold initially vie

wed the downstairs ar

ea of the model home and then proceededupstairs to view the remaining

rooms. On her

way upstairs, she noticed that the hand rail w as loose at the top o f the sta irway. Ms. Arnold did not notice any condition concerning the carpet on her way up the stairs.After Ms. Arnold had finished v iewing the upstairs area, she beg an walking down the stairway . Ms. Arnold was not holding the handrail and as she reached the second step in her descent, s he felt as if her feet were knocked and the carpet pulled out from under her. As a result, Ms. Arnold fell down the stairs receiving multiple injuries, including a ruptured disk in her neck.

Steven Ottosen , agent fo r Bow den Building Corporation, had traversed the stairs in qu estion appro ximately 20 times on that same day and had traversed the stairs hundreds o f t imes in th e preced ing month s. Ottose n never no ticed any d efective conditions with the car

pet. More than 200 people had used the same stairs i n the month preceding Ms. Arnold’s fall, none of which reportedany dangerous or defectiv e condition3

of the carpet and none of whom tripped or fe ll.

The carpethad been installed on the stair by Defendant Dehoney Bishop Interiors, Inc. on or about June 7, 1993. The carpet c ondition was r epaired by employees of the defendant on October 18, 1993.

On May 23, 1994, Plaintiffs filed a Complaint for Money Dam ages, and filed an Amended Complaint for Money Damag es on June 30, 1994. Defendants filed their answer on August 8, 1994. A motion for Summary Judgment was filed by

Defendant on November 7, 1997, with Plaintiffs fili ng their response on December 4, 1997.

In support of its Motion for Summary Judgment, Defendant contendedthat Pla intiffs did not come forth with evidence as to the material issues of breach of duty of care owed Ms. Arnold by it, or that it had any notice, actual or constructive, of any

defective condition in the carpet

or the installation. Defendant asserted that Plaintiffs did not pr esent evidence to these material issue s upon which reasona ble mind s can disa gree. Add itionall y, Defendant cont ended that Plaintiffs could not prove essential elements of a prima facie
case against Defendants. Particul ar ly, Defendant argued that the evidence is uncontradicted that it used reasonable care in installing the car pet in the model home. Also, Defendant insisted that it did not breach aduty to Ms. Arnold because no allegedly defect ive conditio n existed. Alternat ively, Defendant conten ded that if adefective condition did exist, it had no noti ce of the condition.

In responding to Defendant’s Motion for Summary Judgment, Plaintiffs contended that there is an inference that the c arpet was ne gligently inst alled or it would not h ave come loose w

hen Ms. Arnold w

alked on it. Pla intiffs

pointed to the testimony of the carpet installer, Fred Fulgenzi, w ho stated that in order

for properly installed carpet to come loose someone would have to physically pull the carpet up. Hence, Plaintiffs argued that since the carpet was

lo ose and no one pulled it up, the carpet must have been ne gligently installed for it to have come loose absent phy si cal pulling. Plaintiffs also pointed to the4

testimony

of their expert, Virgil Perry, professional carpet installer for 19 years. Perry opined that the carpetwas not properly i nstalled on the stairs becaus e properly installed carpet would not come loose from merely walking on the carpet.

The trial court found that there w ere no genuineissues as to any material facts in this cause and entered an Order Gr anting Defendant’s Motion for Summary Judgment on January 29, 1998. This appeal by the Plaintiffs followed.

II. Notice

This Court will dispens

e quickly of the Defendant’s argument that Defendant did not breach a duty to the Plaintiff because Defendant had no notice of any allegedly defecti ve condition. The Defendant statesthat it could not have anticipated or repaired any allegedly defect ive condition withou t notification from Bowden homes, Inc.Defendant alleges that since Plaintif f cannot establish that Defendant ow ed Plaintiff any duty to w arn of an allegedlydefective condition, Plaintiff cannot prove an essential element of her prima facie negligence claim.

Notice to the Defendant is not an issue i n t his case. “If proof should show it w as defendant who . . . caused the defective condi tion, no circumstances constituting notice need be shown, since defendant need not be otherwise notified of what he himself has done.” Stringer v. Cooper 486 S.W.2d 751, 757 (Tenn. Ct. App. 1972). Plaintiffs all ege that Defendant improperly installed the carpet on the st air on wh ich the carpet came up, causing her to fall. This is not a pr emises liability case. The Defendant in this matter is Dehoney Bishop Interiors, Inc., the install er of th e carpet. A consent order w as entered di smissing with prejudice Bow den, the owner of the premises up on which Plaint iff wa s injured. If Bowden remained a Defendant in thi s action, an d t he defective condition was determined to be caused by another, notice to Bowden would be an issue. However, the onlyremaining Defen dant is Dehoney a nd notice to a neglige nt party as to their o wn negligence is not required. Defendant’s motion for summary judgment should therefore not5

be granted based upon lack of notic e to Defendant.
III. Improper Installation

Decisionsto grant a summary judg ment do not e njoy the presumption of correctness
on appeal, because they involve only questionsof law. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn.1995). Our task on appeals from summ ary judgments is to det ermine independently whether the moving party has satisfied

the requirements of Tenn. R. Ci v. P. 56. Hembree v. State , 925 S.W.2d 513, 515 (Tenn.1996); Payne v. Breuer , 891 S.W.2d 200, 201 (Tenn. 19 94). Tenn. R. Civ. P. 56.03 requires a party seeking a summary judgmentto demonstrate that there are no genuine disputes concerni ng the material facts and that they are entitled to a judgment as a matter of law

. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn.1997); Wyatt v. A-Best Co. , 910 S.W.2d 851, 85 4 (Tenn.1995).

As a general rule, negligence cases are not amenable to disposition on summary judgmentunless, from all the facts toge ther with the inferences t o be drawn therefrom, facts and inferencesare so certain and uncontroverted that reas onable minds must agree. Keene v. Cracker Barrel Old Country Store, Inc

. 853 S.W.2d 501, 502-03 (Tenn. Ct. App. 1992). In negligence cases, s ummary judgment is only appropriate when the in ferences which may be drawn from the unc ontroverted facts are so certain that all reasonable persons must agree on them. Id . at 503. Conversely stated, if the facts are uncontrov erted, summary judgment is inappr opriate if reasonable minds could differ as to the inferences to be drawn therefrom. Id . at 503.

The Tennessee Supreme Court expounded on the summary judgment issue in Byrd v. Hall 847 S.W.2d 208 (1993). The Court provided the fol lowing guidance:

In determining whether or not a genuine issue of material fact exists for purposes of summary judgment, courts in this state have indicated that th e question should be consider ed in the sam e manner as a motion for directed v erdict made at t h e close of the plaintiff's proof, i.e., the tri al court must take the strongest legitimate vie w of the evidence in favor of the no nmoving party, allow all reasonable inferences in fav or o f that party, and discard al l countervailing ev idence.6 Then, if there is a dispute as to any material fact or any doubt as to the conclusions to be d rawn from that fact, the motion must be denied. Poore , 666 S.W.2d at 49 ("[I]f the mind of the court entertain s an y doubt whether or not a genuine issue existsas to any material fact it i s its duty to overrul e the motion."); Dooley v. Everett , 805 S.W.2d 380, 383 (Tenn. Ct. App.1990). The court is not to "weig h" the evidence when evaluating a motion for summar y judgment. Byrd v. Hall at 210-11.
This Court will first address Defendant’s allegationthat no such defective conditi on existed. Defendant points out that Plaintiff w as the only person to claim ther e was a defect i n the carpet out of the hundreds of vi sitors to use the stairw ay of the model home

. Defendant takes the position that Plai ntiff did not notice a defective condi tion in the carpet because no such condition exist ed. However, there is

evidence in the record of the following facts: The Plaintiff did slip and fall on t he stairs wh ich were carpeted by Defendant, the carpet came up, and the carpet looked like a slide between the step abo ve it and the step below it after the fall. The Plaintiff reported the incident to Steve Ottosen,
a salesman at Bowden Homes, and Mr. Ottosen attempted to kick the carpet back in place with the heel of his shoe. Defendant was called back out to the property after the in cident to check the carpet, and Defendant’s employees did in fact return t o the home

on October 18, 1993, the day

after the incident. There is certainly sufficient evidence on this i ssue to go to a jury.
The main issue upon which this case turns is whether there is a dispute asto any material fact concerning the Defendant’ s installation of the carpet. Defendant contends that it has presented uncon tradicted ev idence that the carpet at iss ue was installed in a reasonable manner which is customary for the indus try. Defendant asserts that the carpet was installed properl

y and there is no evi dence that it was improper ly installed.
Plaintiffs, on the other

hand, contend that they presente d sufficient circumstantial evidence to crea

te a tri able is

sue for t he jury . Plaintiffsadmit that their expert did not view the accident scene or the actual installation of the carpet. However, their expert testified that there is only one w ay to properly ins

tall carpet, and if carpet is properly installed it will not slip or come up unless someone physically pulls the carpet up. Pla int iffs claim that7

since there is no evidence that someone physica lly pulled the carpet up, the fact that it came loose is itself evid ence that it was not proper ly installed.

While De f endant asserts that the evi dence is uncontradicted that th e carpet was properlyinstalled, this Court is not equally convinced. The record made available to this Court does not contain the full depositi on of Fred Fulgenzi, the installer of thecarpet. This Court has before it onlysuch portion of that deposition as was attached to the Def endant’s Memorandum submitted in support of their motion for summary judg ment. In thatportion of the deposition, the in sta ller appears to be saying that he does not remember this particular

installation, or the subs equent repair to the carpet . He testifies to the proper installation procedure

and testifies that this is how he regularly installs carpet. This Court takes note of the statement made by the install er that“I’ve been doing this for twenty years. I don’t make too many mistakes,but sometimes, we do.”

The installer, Mr. Fulgenzi, also testified that if carpet is installed properly, it wi ll not normally come loose. He stated that the onl y th ing he could think of caus ing it to c ome loose is somebody coming and tear ing it up, s omebodypulling on it. He testified that
som eone vacuuming the carpet w ould not cause it to come off the tack s trip if it wa s properlyinstalle d. Mr. Fulge nzi further stated that steam cleaning would not cause properly installed carpet to come loose, but rather would shrink it up and make it tighter on the pins. “The only way carpet can come loose if it is properly installed is somebody putting their hand underneath it and pulling it up.” Plaintiffs’ expert, Virgil Perry, a carpet installer for more than 19 years, testified that there is only

one way in the industr y to professionally i nstall carpet on stairs.He testified to the prop er metho d, which was the same method the actual installer, Fred Fulgenzi, testified to. Mr. Perry

then testifi ed that the onl y way pr operly in stalled car

peting wi ll come up is if y ou grab the car pet and l iftit st raight up which w ould get it off the tack strip and then pull it in an upw

ard and outw

ard motion. H e testified t hat for the car pet to come

loose without physically pulling it up, it would be the result of the carpet not being completely over both sets of nails, w hich would not be the proper installation.8

Mr. Perry further tes

tified that it is not uncommon for a c arpet installer occasionally to instal l carpet improperly. He stated in relevant par t: But my opinion is this because it ’s a common circumstance, I’ve come in contact w

ith it, all carpet stores

are quite familiar with it, carpet la yers w ork based on their speed. We m ake between three fifty, four hundred dollars a d ay, so when we start a job one da y, we don’t want to have to go back tomorrow because tomorrow interferes w ith making the same amount of money that

day. Okay. So sometimes we’ll run into situations where we’ll put

that, we’ll think w

e got that

carpet in there and it may not. And it’s not

an uncommon call for

a carpet company to receive, hey, listen, I’v e got-- you know, one of my steps coming loose and maybe two. Usually no more tha n one or two because carpetlayers, even thoug h we work fast, w e try tobe pretty efficient. On cross ex

amination, M r. Perry was asked i f he ever had any carpet over stai rs come loose. Mr. Perry s

tated yes and that he woul d say that he was negl igent in laying the carpet when it came loose.

Q: You would say th at you were negli gent? A: Absolutely. That’s how come I give all my customers a year’s warranty on the

quality of my workmanship. It’s normally a sta ndard in our industry because we recognize, or t h e industryrecognized that there are times when men will make mis takes. I t’s all part of the human element. And we go back out there and take care of that at no cost to the store, so as a result it’s at no cost to the--
Mr. Perry did testify i n his deposition that he did not see whether this parti cular carpetwas properly ins talled on the steps and he therefore could n ot stat e that it was improperly installed. In his deposition testimony , he repeatedly stated that he w as basing his testimony on the proper method of installation in the industr y, that there is only one proper method, and if the ca rpet is properly in stalled it will no t come loose absent physically

pulling it up. He lat

er stated in an affidavit that it was his opinion that the carpet
was not properly install ed over both sets of nails on t h e tack strips and that the cl eaning of the carpet, walking

upon the carpet b y pr ospective purchasers and salesmen or a combination of those thin gs caused the carpet to come loose fr om the tack strips

due to its improper installati on.

Defendant makes much of this contradiction between the depositiontestimony and the affidavit of Mr. Perry. However, the fact that th e carpet was not p roperly installed9

app ears to be Mr. Perry’s position from the beginning. While it is true that Mr. Perry admitted in his deposition that he di dn’t see the carpet and could not s ay that it was improperly installed, the main thrust of his entire testimony w as that it must ha ve bee n improperly installed, or the carpet would not have come up. While this Court can not delve into the mind of M r. Perry, it is certainly po ssible that in his deposition Mr. Perry w as saying that he had no first hand knowledg e, had no d ir ect evidence, that the carpet was improperly installed. In his affidavit , Mr. Perry states the conclusion that he was , in fact, urging in his deposition testimony. His opi nion is that the carpet was impr operly installed because that is the only w ay it would have c

ome loose.

There was additional testimony on the carpet installation from Mr. Roger Bishop, copresident

of Dehoney Bishop

Interiors, Inc. He testified that Fred Fulgenzi was i n fact the insta lle r of the carpet in question. M r. Bishop had installed car pet for approximately ten years, although he admitted that he had not installed carpet in quite some time. He testified that excessive cleanin g could cause a carpet to c ome loose from a tack strip. He state d “maybe too much walking, w hi ch is a bit unlikely. Then, pulling it up.” He t estified that excessive cleaning could cause it to come loose because “so much w ater on the backing has a tendency to make it release, and then it will a lso shrink it a nd it is just a constant problem of shrinking and delaminating the carpet and it will finally r elease it at some point.” Facts may be inferred from circumstantial evidence, and an inf erred fact may be the basis of a further inference to the ultimate or sought-for fact. Benson v. H.G. Hill Stores, Inc. , 699 S.W.2d 560, 563. (Tenn. Ct. App. 19 85). In a civil case depending upon circumstantial evidence, it is sufficient fora party having the burden of proof to make out the more probable hypothesis, and the evidence need not arise to that degree of certainty which will exclude ev

ery other reasonable conc lusion. Id. at 563. It is on ly necessary for the pl aintiff to presen t proof wh ich, if be lieved by th e jury, mak es plaint iffs’ th eory o f th e case more probable than the theory of the defendant. Id

.

The Plaintiffs’ case relies mainly on circumstanti al evidence. They put on proof that there is only one proper way in the industr

y to install carpet onstairs, and if it is ins talled10

properly, it will not come up as it did in this case. The installer himself testified that properly installed carpet will not

come up absent someone physical ly pulling it up. While there was testimony

of Mr. Bishop that ex cessive cle aning and perhaps too much walking could
cause the carpet to come up, it is not necessary that the proof of the plaintiffs exclude every other reasonabl e conclusion. Benson at 563.

Defendant asserts that it has prese nted uncontradicted evidence that the carpet at issue was installed in a reasonable manner which is customary for the industry. However, neither party has chosen to incl ude in the record the depositi on of Mr. F ulgenzi , the installer of the carpet, that is so cruc ial to this issue of proper installation. This Court does have available in the recor d the portion of

the deposition testimony of Mr. Fulgenzi which
was attached to Defendant’s memorandum in suppo rt of their motion for summary judgement. This Court must base its ruling on w hat we have before us in the record. It appears from his testimony that Mr. Fulgenzi does not r emember this particular installation. Unfortu nately, this Court has only hi s answer, and not the parti cular question asked. However, nowhere in the record before this Court does Mr. Fulgenzi s tat e that he does remember

the instal lation . It is also of importance that Mr. Fulgenzi stat es that he sometimes makes mistakes. Th e jury in this case would be entitled to consider the various inferences to b e drawn from the proven facts and to determi ne which in its judgment is the most probable. The jury is not permitted to speculate as to which of two equally probable inferences i s applicable, but that is not the situation here. There is no testimony in the record before this
court that M r. Fulgenzi remembers installing this par

ticular carpet properl

y. There was testimony

of two persons that

the only way pro perly installed car pet could come up is by physically

pulling it up. Alter natively, t here was te stimony b y Mr. Bishop that exce ssive cleaning or perhaps too much walki ng could ca use properly install ed carpet to come loose. It would be the job of the jury to weigh the credibil ity of these witnesses and decide what testimony

to believe. Furthermore, if the jury chose to believe Mr. Bishop, they would also have the job of deciding i f there wa s, in fac t, excessi ve cleanin g or too mu ch wa lki ng on the carpet.11

The jury could fairlybelieve the testimony of Mr. Perry and Mr. Fulgenzi that the only way properly installed

carpeting would come up is if it is physically pulled up. The jury could then fairly infer that because this carpet came up in the absence of such physical pulling, it was improperly i nstalled. From the testimony of the installer himself that he sometimes makes mistakes, and from the testimony of P laintiffs’ expert, Mr. Perry, that it is not
uncommon to improperly install carpet on a stair or two in an otherwise proper i nstallation, the jury could fairly

reason that Mr. Fulgenzi, while utiliz ing the p ro per method of installation, did not properly install the carpet on this particular stair. Taking the strongest legitimateview of the evidence in favor of the nonmoving party, we are of the opinion that the facts and the reasonable inferences to be drawn from those facts make a prima facie case for the plaintiff and render summar y judgment inappropriat e.

We are therefore of the opinion that the tri al court erred in granting Defendant's Motion for Summary Judgment.

IV. Conclusion

The judgment of the trial court is hereby reverse d and this case is remanded for trial. Costs of this app eal are taxed to the Defendant, for which execution may issue if
necessa ry.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.12