# FILED
June 20, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ BOBBIE J. BYRD and WILLIE BYRD, Plaintiff s-Appell ees, Shelby Circuit No. 42947 T.D. Vs. C.A. No. 02A01-9610-CV-00252 FIRST TENNESSEE BANK, Defend ant-App ellant.

__________________________________________________ __________________________ FROM THE CIRCUIT COURT OF SHELBY COUNTY THE HONO RABLE JOHN McCARROLL , JR.

Jeffre y Jones of

Memphis For Appelles William M. Jeter and Richard Sorin; Glassman, Jeter, Edwards& Wade, P. C., of Memp his For Appellant

AFFIRMED AND R

EMANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE HOLLY KIRBY L ILLARD, JU DGE This is a premises liability action brought by plaintiffs, Bobb ie J. By rd and husband, Willie Byrd, against defendant, First Tennessee Bank, for Mrs. Byrd’s injuries sustained on June1 Mr. Byrd’ s suit is for loss of se rvices a nd consor tium. 2 12, 1991. 1 Mr s. Byrd, se eking information concerning the bank’s certificate s of deposit, was directed to take a seat in the waiting area of the Raleigh Branch of the First Tennessee Bank. When sh e sat dow n in the ar ea, the c hair col lapsed, a

nd Mrs. Byr

d fell to th

e floor s ustainin g injuries. The Byrds filed suit against First Tennessee in circuit court on December 11, 1991 and allegedthat First Tennessee failed to properly maintain and inspect the chair, failed to

warn Mrs

. Byrd of a defective chair, and fa iled to provide a safe chair for Mrs. Byrd. The Byrds aver that the alleged acts of negligence were the direct and proximate cause of Mrs. Byrd’s injuries. By order entered June 2, 1993, the trial court grante d partial summary judgment in favor of First Tennessee regarding all allegations contained in the original complaint. By the same order, the trial court pe

rmitted the Byrds to a

mend thei r compla int to allege the additional legal doctrine of res ipsa loquitur

. The Byrds filed an amended complaint alleging res ipsa loquitur

on June 10, 1993. A jury trial was held on May 22 and 23, 1996, and the jury returned a verdict in favor of Mrs. Byrd

for $100,000.00 and in favor of Mr. Byrd for $15,000.00. The trial court entered judgment on the jury verdict and subsequently denied First Tennessee’ s mot ion for a new trial and for j udgment no twithstan ding the ve rdict. Fir st

Tennessee has appealed, and the only issue for review is wh ether the trial court erred in denying First Tennessee’ s motion for a directe d verdic t and for

judgment n otwithsta

nding the v erdict. Courts reviewing a motion for directed verdict may not weigh the evidence, Benton v. Snyder , 825 S.W.2d

409, 413 ( Tenn. 199 2); Hol mes v. Wilson , 551 S.W.2d 682, 685 (Tenn. 1977), or evalu ate the c

redibilit y of the w itnesses. Benson v. Tennessee Valley Electric Coop. , 868 S.W.2d 630, 638-39 (Tenn. App. 1993). In City of Bartlett v. Sanders , 832 S.W.2d 546 (Tenn. App. 1991) this Court said:

The rule for determining a motion for

directed verdict requires the trial judg e and the

reviewing court o n appea l to look to

all of the evidence, taking the strongest legitimate view of it in favor of the opponent of the motion and allowing a ll reason able

inferences fro m it in h is favor. The court must discard all countervailing evidence, and if there is then any dispute as to any materi a l determinative evidence or any doubt as to the c oncl usion to be dr awn fro m the whole evidence, the motion must be denied. A verdict should not b e direc ted if

there is any mate

rial evid ence in the record that would

support a verdict for the plaintiff under any of plaintiff’s theories.3

Id . at 549 (citations omitted). The res ipsa lo quitur doctrine is a specialized doctrine that provides the plaintiff with an inferencearising from circumstantial evidence enabling the jury to find that the defendant was negligent if the plaintiff proves certain elements. Poor Sister s of St. Fran cis v. Lon

g , 230 S.W.2d 659, 663 ( Tenn. 195 0); Summit Hill Assocs. v. Knoxville Utils. Bd., 667 S.W.2d 91, 95- 96 (Tenn. App. 1983). The doctrine is based on everyda y experience and requires no more than

a common sense appraisal of the strength of the plaintiff’s circumstantial evidence. Quinley v. Cocke , 183 Tenn. 428, 438, 192 S.W .2d 992, 99 6 (1946); Memphis St. Ry. Co. v. Stockton , 143 Tenn. 201, 206- 07, 226 S.W . 187, 189 ( 1920); Stinnett v. W right , 59 Tenn. App. 118, 125, 438 S.W.2d 357, 361 ( 1968); Davis v. Sparkman , 55 Tenn. App. 65, 70, 396 S.W.2d 91, 93 (1964); Boykin v Chase Bottling Works , 32 Tenn. App. 508, 524, 222 S.W.2d 889, 896 (1949). Under the doctrine of res ipsa loquitur , a plaintiff n eed not prove specific acts of negligence. Summitt Hill Assocs., 667 S.W.2d at 96. Instead, the evidence must be sufficient to enable a fact-finder to conc lude that the injury was caused, more probably than not, by the defendant’s negligence. Stinn ett , 438 S.W.2d at 361. The necessary requirements for application of the doctrine of res ipsa loquitur are (1) that there must be a “thing” causing the injury; (2) the “thing” must be under the exclusive control of the defendant, and

(3) the “thing” must be shown t

o be of suc

h a natur e that inju

ry does n ot ordinar ily result from its careful management. Armes v. Hul ett , 843 S.W.2d 427, 432 (Tenn. App. 1992). The strength of the evidence will vary with the facts of each case, and the strength of the inferenceof the defendant ’s neglig ence wi ll li ke wise var y from re asonable

probabil ity to practical certainty. Sullivan v. Crabtree , 36 Tenn. App. 469, 477, 258 S.W.2d782, 785 (1953). However, a plaintif

f must pre sent enou gh eviden ce so as t o enable the fac t-finder

to make more than a sheer leap of faith. Underwood v. HCA Health Services of Tenn., Inc., 892 S.W.2d 423, 427 (Tenn. App. 1994). Res ipsa loquitur does not apply in those situations where r easonab le persons could not conclude that the defendant’s negligence, more probably than not, caused the plaintiff’s injury. Id. Thus, the doctrine does not a

pply in cases where the

plaintiff ’s injury c ould reasonably have occurred e ven without the defendant’s negligence. Id. First Tennessee asserts that the trial court erre d in allowing the case to go to the jury because the Byrds failed to satisfy two essential elements of res ipsa loquitur . First, the Byrds4

didnot introd uc e evidence to show that the instrumentality (chair) was of such a nature that in jury does not ordinarily result from its careful management, and second, the evidence establishe d that the chair was not under the exclusive manageme nt and control of Firs t Tennessee. Possessors of prope

rty and th ose acti ng on their behalf o we a duty

of reas onable c are to patrons, and this duty includes the duty to main tain the p remises in a reasonably safe condition, the duty to insp ect the p remises, the duty to

discover dangero us conditi ons reas onably recogni zable

by common experience and ordinary prudenc e, and the duty to either remove or to

warn of the dangerous condition the possessors know or should reasonably know about. Smith v. Inman Realty Co. , 846 S.W.2d 819, 823 (Tenn. App. 1992). In the case

before us, First Tennessee furnished the chair f or use by its customers. Mrs. Byrd was specifically invited to take a seat in the waiting area. The record establishes that the chair in question had been in the bank for as long as five years. Mrs. Byrd testified that after the chair collapsed, she noticed a crack or split in the seating area of the chair. A First Tennessee employee, however, testified that she observed Mrs. Byrd sit in the chair, that the front legs of the chair so mewhat pr

otruded o r popped out, and th at Mrs. Byr

d, infact, did not fall all the way to the floor. With either scenario, it appears that there was some defect in the chair. We find it difficul tto unders tand how a

chair c an colla

pse in the

absence of some str

uctural defe ct. Certainl y a chair in a

commercial establishment is subjected to rather constant or prolonged use, and those fur

nishing suc

h a chair to patrons of the establishment should be aware that chairs are notindestru ctible, b ut can be come unst able because of

defects resulting from use. It does appear that a reaso nable ins pection o f the cha ir would r eveal a defect or condit ion of a chair

joint that would allow the front legs to protrude or pop o ut a s First Tennessee’s employee indicated the subject chair did. First Tennessee’s proof is that it had no established procedure for inspection of the facilities for its customers, nor was there any proof that a n inspection of this particular chair or the chairs in this area were made at any time reasonably preceding the ac cident. A plaintiff relying on res ipsa loquitur is not required to rule out all nonnegligent causes for the occurrence, but

need show only that the defendant’s negligence more probably than not caused the injury. Underwood, 892 S.W.2d at 426-27. In Sullivan v. Crabtree, this Court said: The effect

of a case of res ipsa loquitur , like that of any other5 case of circ umstantia

l evidenc e, varie s from ca se t o case, depending on the particular facts of each ca se; and therefore such effect can no more be fitted into a fixed formula or reduced

to a rigid rule than can the ef

f ect of other cases of circumstantial evidence. The only generalization that can be safely made is t

hat, in the w ord s of the definition of res ipsa loquitur , it affords “reas onable

evidence,” in the absence of an e xplanation b y defendant, that the accident arose fr om this negligence. The weight or strength of such “reasonable e vi dence” wil l necessa rily depend on the particular facts of eac h case, and the cogency of

the inf erence of negligence from such f acts may of course vary in degree all the way from practical certainty in one case to reasonable probability in another. 36 Tenn. App. at 476-77, 258 S.W.2d at 785. A chair furnished

for use of business patrons simply does not ordinarily collapse if it has been properly managed. This statement is supported by the holding of this Court in Parker v. Warren , 503 S.W.2d 938 (Tenn. App. 1973). In Parker , plaintiff was attending a wrestling match and was s eated in

bleachers furnished for spectators. Id. at 941. The board upon which she was seated broke, and plaintiff fell six or ei ght feet

to the floo

r below, sustaining

injuries. Id. Plaintiff’s suit alleged that the bleachers were under the exclusive control of defendants and that defenda nts failed in their duty to keep the bleachers in a reasonably safe condition. Id. After

a judgm ent on the jury verdict for the plaintiff, the defendant appe aled, and one of the assi gnments of e rror was that the trial court erred in allowing the ca se to go to the jury on the doctrine of res ipsa loquitur

. Id. Affirming the trial court, this Court said:

We hold

it to be an unusual occurrence for a sea t at a wrestling match to break under the weight of the patrons thereon, and in the ordinary course of things this does not happen. Where thething causing the harm is shown to be un der the management of the defenda nt, and the accident is such as in the ordinary course of things does not happen if thos e who hav e the man agement use proper care, if affords reasona

ble eviden ce, in the absence of explanation by he defendant, that the accident arose from want

of care. Southern Gas Corporation v. Brooks (1961), 50 Tenn. App. 1, 359 S.W.2d 570. The foregoing statement of the doctrine of res ipsa loquitur

is a pplic able to this lawsuit, and the happening of the ev ent u nderthe circumstance s stated w ould warrant an inference of negligence upon the par t of the defe ndants Berry and Warren. It is not necessary that the plaintiff pr ove a specific at of negligence; the inference mak es a jury question. Wh e n, as here, the prerequisites of the doctrine a re met the defendant must come

fo rward with explanatory proof, and the jury is permitted to choose the inference of the defe nda nt’ s negligence in pre fere nce to oth er perm issible or reasona ble infere nces. Coca-Cola Bottli

ng Works v. Sullivan (1942), 178 Tenn. 405, 158 S.W.2d 721, 171 A.L.R. 1200. 503 S.W.2d at

942. We b elieve th

e proof in this cas e satisfies the requirements set out in Parker

.6 First Tenness ee also a sserts th at the Byrds failed to prove that the bank had exclusive control of the chair at the time of the acc i dent. In Boykin v. Chase Bottling Works , 32 Tenn. App. 508, 222 S.W.2d 889 (1949), this Court in considering the requirement concerning control by the defendant of the instrumentality causing the injury said:

With respec t to this req uiremen t, Prof. Pr osser, in his treat ise on Torts, page 298, says: “‘Control ’ is a more or le ss flexibl e term, and has b een inte

rprete d to mean merely that the defendant must have the right of control and the oppor

tunity to exerci se it, as in the case

of a principal who

is prese nt when hi s agent is driving a car, o

r a lando wner who

permits vi sitors tocome upon his premises. Some courts have carried ‘control’ to ri diculous lengths by requiring that the defendant be i n pos session of the instrumen tality at the time of the accident -- thus a customer who sits down in a chair in a store h as been de nied rec overy wh

en it collapse s. O f

course, this is wrong; it loses sight of the real purpose of the requireme

nt in the a

tte mpt to reduce it to an abso lute rule. All that is necessary is that the defendant hav e exclusive control of

the factors which apparently have ca used the accide nt; and one who supplies a chattel to another may have had sufficient control of

its condition although it has passed out of his possession.” 32 Tenn. App. at 525-26, 222 S.W.2d at 897. As previously noted, the defendant in thecase be fore us maintaine d the cha ir inquestion in an area assigned for wait i ng custom ers and furnished the chair for the use of the customers while waiting. First Tennessee was in charge of the chairs and had the opportunity to inspect and ascert ainwhether the chairs were s afe for the use intended. In effect, First Tennessee had exclusive control of

the factors which could have reasonably c aused the accident. The mere fact that third par ties had a ccess to the chai r does not preclud e First Tennessee from having exclusive control over the chair within the meaning of the doctrine of res ipsa loquitur

. See Trujeque v. Service Merchandise Co. , 872 P.2d 361, 366 (N.M. 1994). In Gresham v. Stouffer Corp. , 241 S.E.2d 451 (Ga. Ct. App. 197 8 ), the Georgia Court of Appeals addressed the owne rship, operati on and maintenanc e of a ch air and s tated:

[T]he defendant own ed a nd opera ted the r estaura nt. It is al so clear that the chair was furnished by the restaurant to the plaintiff for his use as a business invitee. Under the se circumstances, a jury would be authorized to conclude that the chair was in the full control of the defendant

a nd that the defe

ndant wa s respons ible for its maintenance. Id. at 452. Likewise, a New York court ad dressed a similar issue and held that evidenc e that a private club owned a chair that broke, that the club’s employees took the broken chair after the7

accide nt, and that no evidence was offered to support a n inferenc e of another cause of the accident were su fficien

t to demons trate ow nership a nd contro l and to warrant submission of the

case to the jury under the doctrine of res ip sa loquitur

. Finocchio v. Crest Hollow Club at Woodbury, Inc. , 584 N.Y.S.2d 201, 202 (N.Y. App. Div. 1992). Chairs are designed to hold their occupants, not to collapse, and chairsare not expected to collapse while being subjected t o their inten ded use in the normal and customary manner. Pear v. Labiche’s Inc. , 301 So. 2d 336, 338 (La. 1974). A chair collapse is something that normally does not occur in the abs ence of

a defect in the chair that

normally could be ascertained by inspection, and there is evidence that th

e chair in this case was in the exclusiv e contro l of First Te nnessee . Once the Byrds e stablishe d these elements , they satisfied their burden of making a prima faci e case from which the jury coul d infer negligence. It then was incumbent upon First Tennessee to come forw ard with explanatory proof. Parker , 503 S.W.2d at 942. The doctrine of res ipsa loquitur does not change the plaintiff’s burden of proving negligence by a preponderance of the evidenc e; it merely shifts the bu rden of going forward to the defendant, who risks losing the case if insuff icient pro of i s submitted to counter the inference crea ted by res ipsa loqu itur. Sc arbrough v. City of Lewisburg , 504 S.W.2d 377, 382 (Tenn. App. 1973). Accordingly, the t rial court correctly denied First Tennessee’s motion for directed verdict. The judgment of the trial court is affirmed, and the case is r emanded to the trial court for such fu rt her proc eedings a s are ne cessar y. Costs of a

ppeal ar e assess ed again st First Tennessee.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ HOLLY KIRBY L ILLARD, JU DGE