# FILED Feb. 5, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) ERMA HAR

DESTY and ) Shelby Law JIM HARD ESTY , ) 33600 T.D. ) Plaintiff

s/Appella nts. )

) VS. ) C. A. NO. 02A01-9510-CV-00235 ) SERVICE MER CHANDISE ) COMPANY, INC. , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable Robert A. Lanier, Judge

Hal Gerber , Memphis, Tennessee Lewie R. P

olk, III , Memphis, Tennessee And Shawn Ellis, WILHO IT EDUMUNDSON TERANDO & HOPKINS, Poplar Bluff, Missouri Attorney s for Plan

tiffs/App ellants.

Gail O. Mathes , Memphis, Tennessee Attorney for D efendant/Appellee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J.
LILLARD, J. : (Concur s) SUMMERS, Sp. J. : (Concurs by Separa te Opinion)This appeal is taken from the trial court’s order of June 7, 1995, granting summary

judgmentin favor

of Defe ndant Ser

vice Mer chandise Com pany, Inc. (hereinafter, “Ser vice Merchandise”). Specifically, the trial court found that there was no proof of a

dangerous condition created by Service Merchandise and no p roof tha t S ervice Merchandise had either a ctual or constructive notice that a dangerous condition existed. Upon consider

ation of th

e recor d before us, the trial court’s order is affirmed.

FACTS

Erma Hardes ty (hereinafter, “Mrs. Harde sty” or “Hardesty”), traveled fr om her residence in Missouri

to Memphis with her daughter and grandson. Whil e at the M all of Mem phis, Mrs. Hardesty, her daughter and grandson we nt shopping at the Service Merchandise store. They entered the store in search of the toy department and, afte r receiving directions, the party proceeded down one of the aisles. Mrs. Har desty had travele d a few f

eet down the aisle when she fellforward and landed on her left hip. As Mrs. Hardesty testified at trial, “All at once I was just falling and I didn’tknow why.” As a resu lt of the f all, Mrs. H ardesty

sustained a fractured hip which required surgery and hospitalization.

Mrs. Hardesty filed

suit to recover for her injuries in which she alleged negligence
on the part

of Servic e Merch andise in failing to keep its store free of dangerous conditions. Her husband sought damages for loss of consortium. The jury rendered a verdict attributing 95% of the fault for the accident in question to Service Mer chandise and 5% to Mrs. Hardesty. The jury awarded $250,000 in damages to Mrs. Hardesty and $150,000 in damage s to her husband.

Service Merchandise filed a motion for directed verdictand later filed a motion for judgmentnotwithsta

nding the v erdict o

r, in the a lternati ve, for n

ew trial
. The trial co urt found it impossible

to determine remittur

be cause of the excessiveness of the judgment and gra nted the motion for new trial. Service Merchandise filed a motion for new trial by a different judge. The motion was gra

nted, and the caus e transf

erred t o Division 7 o f the Shel

by County

Circuit Court on November

23, 1994. Service Merchandise then filed a motion for summary ju dgment which was granted.ISSUES ON APPEAL
Appellan ts’ issueson appea

l are as follows:

1. Did the original trial court err in granting De fendant ’ s motion for new

trial bas ed only on

its finding

that t he damages awarded to Plaintiffs were excessive? 2. After transfer , did the second trial court err in granting defenda nt’s motion

for [summary] jud

gment?
Appellee frames t he issuesas:

1. The trial court properly ordered a new trial on the basis that the damages awarded by the jury were excessive. A. The tria

l co urt, as thirteenth juror, was require d to grant

Defend ant’s moti on for new trial. B. The evid

ence in t his cause was inad equate to support the jury aw ard with r espect t o Erma Hardesty’s claim

a nd the claim of Jim Hardesty, her husband, for loss o f consor tium. C. The excessiveness of the damages awa rded by the jury ju stified the court’ s finding th at th e jur y was motivated by passion and prejudice. 2. Defend ant was e

ntitle d to judgment as a matter of law on the grounds that Plaintiff had no evidence of notice , eithe r constructive or a

ctual. A. The original trial

c o urt erred in denying Defendant ’ s motion for directed verdict and [judgmen t] notwith standing t

he verdi ct. B. The trial court on transfer properly granted Defendant’s motion for

summary ju dgment in th is cause.

ARGUMENT

In considering this appeal, the Court first turns its attention to the issue of whether the trial cou

rt prope rly gran ted Servi ce Merc

handise ’s mo tion for a new trial. The order granting Defendant’s motion for new trial stated:

This matter comes before t he Co urt on DEFENDANT’S MOTION TO SET ASIDE THE VE RDIC T, FOR NEW TRIAL, OR IN THEALT ER NATIVE, FOR REMITTITUR PURSUANT TO THE PROVISIONS OF RULE 59 OF THE TENNESSEE RULES OF CIVIL PROCEDURE, from all of whi ch the Court determines that the amount of the judgment awarded t o Plain tiffs was so excessive that the Court was unable to determine a reasonable remittitur under the circumstances of

th is case. Theref

ore, this Court gra

nts Defend ant’s Rule

59 Motion f

or a New Trial. IT IS, THEREFORE, ORDE RED , ADJUDGED AND DECREED that Defendant Service Merchandise’ s Motion for a New Trial be and is hereby granted.

The trial cou

rt acts a s thirtee

nth juror and, in ca ses wher

e the tria l court deems it appropriate, it may set aside a jury’s verdict

and orde r a new tr ial. James E. Strates Shows, Inc. v. Jakobik , 554 S.W.2d

613, 616 ( Tenn. 197 7); Sherlin v. Robinson , 551 S.W.2d 700 (Tenn. Ct. App. 1976). Theref

ore, if the trial court disagrees with the amount of the verdict, finding it to be either excessive or inadequate, the trial court may set aside that judgme

nt. Foster v. Amcom Int’l., Inc. , 621 S.W.2d 142, 148 (Tenn. 1981). As the Supreme Court noted in Foster , additurs and remittiturs
were designed to correct the excessiveness or inade quacy of a jury’s verdict. However, the trial court should award a new trial rather than sugge st a remittitur or additur if the adjusted amount of the judgment would bear no relation to the jury verdict. Id . at 148.

In Guess v. M

aury , 726 S.W.2d 906 ( Tenn. App. 1986), this Court addressed a situation similar to the case at bar. In that case, the jury return ed a verdict for $950,000 for one plaintiff and for $83,000 for another plaintiff. Id . at 907. The trial court suggested a remittitur of the damage awards to $235,000 and $25,000, respectively. Id . at 911. On appeal, this Court noted that a remittitur which amounted to a 75% reduction in the amount of the jury award was excessive in that it destroyed the jury’s verdict. Therefore, we found that the trial court should have granted a new trial. Id . at 913.

In the insta nt case, the trial court determined “that the amount of the judgment . . .
was so excessive” that the trial court was unable to determine a re asonable remittitur. Therefore, rather than order a remittitur, the trial court or dered a new tria l. Becau se the trial

court, a cting in its roleas thirte enth

juror, would not have accepted the jury’s verdict and clea rly expr essed thi s intent, we find th at the tri al court properl y award ed Defe ndant a ne

w trial.Having determined that the trial court did not err in granting Defendant’s motion for
new trial, we

now addr

ess the issue o f whethe

r Servic e Merch andise ha d notice o f the alle gedly dangerous condition. We find that Hardesty failed to establish that Service Merchandise ha d either actual or constructive notice of an unsafe or unreasonably dange rous condition on its premises at the time of the inju

ry. Me rcha nts owe customers a duty “to exercise reasona ble care to keep the premises in a reasonably safe and suitable condition, including the duty of removing or wa rnin g against a dange rous cond ition trac eable to

persons f or whom the

proprie tor is not r

esponsibl e . . . if the circumstances of time and place are such that by the exercise of reasonable c are the proprietor should have become aware of such c onditions.” Self v. Wal-Mart Stores, Inc. , 885 F.2d 336, 338 (6th Cir. 1989) ; Simmons v. Sears, Roebuck & Co. , 713 S.W.2d 640, 641 (Tenn. 1986), quoting Allison v. Blount Nat ’l Bank , 390 S.W.2d 716, 718-19 (Tenn. App. 1965). A merchant is not an insurer of the sa fety of it s custome

rs, and it is not to be presumed that the proprietor of a store like Service Merchandise is instantly aware of all that transpires within its establishment. Self, 885 F.2d at 339; Jones v. Zayre, Inc. , 600 S.W.2d 730, 732 (Tenn. App. 1980) ; Patterson v. Kroger Co. , 389 S.W.2d 283 (Tenn. App. 1964).

In order to preva

il against th e owner

or opera tor of a p remises f or neglig ence in allowing a dangerous or defective condition to exist on the premises, the plaintiff must establish (1) that the defendant

created the condition or (2) that the defenda nt had actual or constructive notice of the condition prior to plaintiff’s injury. Self v. Wal-Mart Stores, Inc. , 885 F.2d 336 , 338 (6th Cir. 1989); Chambliss v. Shoney’s, Inc ., 742 S.W.2d 271, 273 (Tenn. App. 1987 ); Benson v. H. G. Hill Stores, Inc. , 699 S.W.2d 560, 563 (Ten n. App. 19 85); Jones v. Zayre, Inc. , 600 S.W.2d 730, 732 (Tenn. App. 1980); Paradiso v . Kroger Co ., 499 S.W.2d 78 (Tenn. App. 1973). Plain tiffs alleg e that Mrs. Hardesty tripped over a b ed rail that was on display at Defendant’s store. Assuming, arguendo , that the bedrail was the offending object, there has bee n no proof as to who placed the b ed rail in the

position it w as in whe

n Mrs. Ha

rdesty f ell over it. No evid

ence wa s intr oduced t o show that Service Mer

chandise either c reated th e con dition or h ad actua l notice th

ereof. Mrs. Hardesty testified,

Q. And you didn’t know whethe r a Service Merchandise employee pulled it out in the aisle or a cus to mer had just pulled it out right before you were walking down ther

e, did you , ma’am?A. No, I don’t know . . . .

Mrs. Hardesty’s daughter, Shelby Vincent, was with he r mother a

t th e time of the accident. She testifie d as follo ws:

Q. And you don’t know who put that bed rail in that position, do you, ma’am? A. No.
In this cause, Plaintiffs have not shown that Defendant either placed thebed rail in the allegedly dangerous po sition or had actu al notice of the allegedly d angerou s conditio n on its premises
. Therefore, in order to preva il, Plaintif

f must demonstrate that Service Merchandise had constructive notice of the allegedly dangerous condition. As a general rule, constructive knowledge cannot be estab lished wit

hout some s howing of

the lengt h of time th

e dange rous c ondition had existed. Self

, 885 F.2d at

338. As not

ed by this Co

urt in Jones v. Z

ayre, Inc ., 600 S.W.2d 730, 732 (Tenn. App. 1980 ), “[i]f

liability isto be predicated on constructive knowledge by the Defe ndant, the proof must show the dangerous or defective condition existed for suc h length of time that the Defendant

knew, or in the exe

rcise of ordina ry care should hav e known, o f its existence.” See also, Worsham v. Pilot Oil Corp. , 728 S.W.2d 19, 20 (Te

nn. App. 1 987); Allison v. Blo unt Nat’l Bank , 390 S.W.2d 716 (Tenn. App. 1965) . Mrs. Hardesty testified at trial re garding t

his issue as f

ollows:
Q. Mrs. Hardesty, you didn’t know how long that rail had been in the aisle pri or to walk

ing up to it, did you, ma ’am? A. Of cou rse not. I didn’t se e it when I

fell.
In her pr evious de position, M

rs. Hard esty testi fied tha

t she had n o idea how

long the r

ail had been protruding. She stated:

Q. You ha

ve no idea

how long the rail ha

d been sti cking out? A. No, I don’t.
Similarly, Shelby Vincent off ered the following

testimony a

t trial:Q. And insofar as how long that bed rail had been in that position, you don’t k

now that, do you, ma ’am? A. No.
In fact, when questioned at trial on this point by Plaintiffs’ counsel, Mrs. Vincent testified:

Q. Truthfully, you don’t know how long that rail had been there? A. No.

Plaintiffs have predicated their claim of con struct ive notice on Mrs. Vincent’s observation that the b ed rail remaine d in the ai sle afte

r the ac cident oc curred . Mrs. Vincent testified that the bed rail remained in the aisle for over ten minutes af ter the acc id ent and that when she returned to the store the

next day, she found

the bed r ail protr uding into t

he aisle in the same location
as it had been the day before. While her testimony that the bed rail was protruding into the aisle for
some 24 hours after the accident would be persuasive as to notice for a subsequent acc ident, we do not find that it has any bearing on the facts surrounding the instant cause.

Plaintiffs base the

ir claim on circu mstantial evidenc e which th

ey asser t supports any
one of a number of inferences which satisfy their burden of pr oof. Plaintiffs rely upon Benson v. H.G. Hill Stores, Inc ., 699 S.W. 2d 560 (Te nn. App. 1 985), in w

hich this Court held th at a jury could draw inferences from the facts. In that case, the jury wa s permitte d to infer that wet w ax was a dangerous cond ition not ordinarily found on the floor of trade establishments without the store warning customers of the danger. Id . at 563. Further, the Court held that the jury could infer that the wax was placed or spilled there by a store e mployee. Id
.

We do not find the type of defective condition alleged here to be a ppropriate for the jury’s drawing

of infer ences th at Servic e Merch andise ha d notice o f the all egedly dang erous condition prior to the accide nt. In Ben son , the Court found it to be salient that there were two employees in the imme diate v icinity of the wet wax at the time of the accident. The employee s either observed

or should

have obs erved th

e spillage of the wa x, there by produc ing notice

to their employer. In the instant case, however, there wer e neither customers nor

employees near the sceneof the ac cident. M rs. Vince nt stated a

t trial:
Q. Now in this few minutes that you were in the store you saw no customer s in the ar

ea wher e your mot

her fell, correct? A. Yes. Q. And there were no Service Merc handise employees who were standing around lo oking at the merch andise in that area, were

there? A. No.
Furthermore, Mary Summe rs, a Se rvice M erchandise employee for 11 years, te stified that all Service Merchandise employees are tra ined to loo

k out for a

nd to set r ight merchandise t

hat is found to be out of place.

Where there is a complete absence of proof a s to when a nd how the dangerous condition came

about, it w ould

be improp er to per

mit the jur

y to speculate on these vita l element s. Ogle v. Winn - Dixie Greenville, Inc. , 919 S.W.2 d 45, 47 (T enn. App. 1995); Paradiso v. Kroger Co. , 499 S.W.2d 78 (

Tenn. Ap p. 1973); Chambliss v. Shoney’ s, Inc. , 74 2 S.W.2d 271 (Tenn. App. 1987). A plaintiff

must submit proof as to how long the allegedly dangerous condition existed prior to the accident. Jones v. Zayre , 600 S.W.2 d 730, 732 (Tenn. 198 0); Worsham v. Pilot Oil Corp. , 728 S.W.2d 19, 20 (Tenn. App. 1987). Plaintiffs presen ted no proof that Defendant created the alleged ly danger ous condition. Furthermore, there has been no proof that Defe ndant had either actual or constructive knowledge of the cond ition prior

to Mrs. Ha

rdesty’ s fall; Ha

rdesty acknowl edged tha

t she did no t know whe

n the off ending be d rail ha

d been pulled out.

In order to

establish a prima fac ie case of negligence for a slip-and-fall case , the law requires that the defendant create the dangerous condition or know about it prior to the ac cident in question. If a pla

intiff ca nnot prove

th at d efendant either created the c ondition or had actual knowledge of it, the plaintiff must prove, in order to prevail, that defendant had constructive knowledge of the ha

zard. I n order t o establis h constru ctive kno wle dge, the plaintiff must present proof as to the length of time that the dangerous condition existed. Self, at 339. In this case, Plaintiffs presented no proof as to how long before the accident the bed rail had pr otruded into the aisle. In failing to do so, Plaintiffs failed to establish the essent ial el ement of constructiveknowledge, and consequently, Plaint iffs cann ot establish a prima fac ie case of negligence.

Therefore, the original trial court erred in not granting Defendant’s motion for directed verdict.

On October 4, 1994, the original trial court granted De fendant’s motion for a new trial. On November 23, 1994, the cause was transferred to Shelby County Circuit Court, Division 7 where a different

court had the opportunity to evaluate the issueof whether Plaintiffs had provided adequa te proof of

an unsaf e or unre asonably

dangero us conditi on prior t

o Mrs. Ha

rdesty’ s fall. Service Merchandi se move d for and was granted summary judgment. In support of its motion, Defendant

filed a copy of the entire trial transcript from the original proceedings. Plaintiffs offered
no additional proof by affidavits or otherwise and relied entire ly upon the trial transcript. After reviewing the tran script, motions and r esponsesof the pa

rties, and hearin g oral ar

gument on t

his issue, the trial court granted Service Merchandise’ s motion for summary judgment.

No presumption of correctnes s att aches to decisions granting summary judgment because they involve only

questions of

law. Thus, on appeal, we must make a fresh deter mination concerning whether the req uirements of Rule 56 T.R.C.P. have been met. Cowden v. Sovran Bank/Central

South , 816 S.W.2d 741, 744 (Tenn. 1991).

We begin our analysis of the issue of summary judgment by noting that a trial court should grant a motion for summary judgment only if the movant demonstrates that there a re n o genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56.03 T.R. C.P.; Byrd v. Ha ll , 847 S.W.2d 208, 210 (Tenn. 1993). Th e partymoving for summary judgment b ears the burden o f demonst

rating tha t no genuin

e issues o f materi al fact e

xist. Byrd , 847 S.W.2d at 210. In Byrd , the Tennessee Supreme Court stated:

Once it i s s hown by the moving party that there is no genuine issue of material fact, the nonmoving pa rty must then demonstrate, by affida vits or discov ery mate

rials, that there is a genuine, material fact dispute to warra nt a tr ial. (C itations om

itted.) I n this reg ard, Rule 56.05 providesthat the n onmoving pa rty cann ot simply

rely upon his pleadings but must set forth specific facts showing tha t there is a genuine i ssue of ma

terial f act for trial.Id . at 211, (emphasis in original).
Considering the evidence in the light most favorable to the Plaintiffs, we are left

to determine whether ServiceMerchandise was entitled to summary judgment as a matter of law. As here tofore stated, no claim for negligence in regard to a slip-and- fall injury can succeed in the absence of

plaintiffs’ showing either that the defendant create d the dangerous condition or that the defendant had actual or constructive knowledge of said condition. Self v. Wal-Mart Sto

res, Inc ., 885 F.2d 336, 33 8 (6th Cir. 1989); Chambliss v. Shoney’s, Inc. , 742 S.W.2d 271, 273 (Tenn. App. 1987); Benson v. H.G. Hill Stores, Inc. , 699 S.W.2 d 560, 563 ( Tenn. Ap p. 1985); Jones v. Zayre, Inc ., 600 S.W.2d 730 , 732 (Te nn. App. 1 980); Paradiso v. KrogerCo ., 499 S.W.2d 78 (Tenn. App. 1973).

In addressing the motion for summary judgment, the court must co nsider the evidence in the same

manner as a motion for directed verdict made a t the close of plaintiffs’ proof. Therefore, the “court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence.” Byrd at 210-11. The proof in the instant case is insufficient for Plaintiffs to establish a cause of action and to carry their burden of proof . Mrs. Ha

rdesty ha s presen

ted no pro of that Se

rvice Me rchandi se created the dangerous condition or had actual knowledge thereof. Under the Self analysis, when a plaintiff cannot p rove thata defendant either created a dangerous condition or had actual notice thereof, the plaintiff must demonstrate the length of time the

condition existed p rior to the accide nt, in order to establish the defendant’s constructive knowledge. Self, 885 F.2d at 339.

Plaintiffs have been

unable to show that Defendant created the da ngerous condition by placing t

he bed ra il in the aisle . Both

Mrs. Hardesty and her daughter, Shelby Vincent, admitted that they did not know who placed the bed rail in the position it was in when Mrs. Hardesty fell over it. Similarly, Plaintiffs have not produced an y evidence t o suggest that Defendant had actual knowledge of the co ndition pr ior to the accident nor have they shown how long the bed rail had been in the aisle . In fac t, both Mrs . Harde sty and Mr s. Vincent a dmitted at trial and in their depositions that they did not know how long the bed rail had been in the aisle.It appears that

Plaintiff s are una ble to esta

blish a prima fac ie case of negligence for Mrs. Hardesty’s injuries because they are una ble to offer any proof

that Defendant either knewof
or had constructive knowledgeof the allegedly dangerous condition. Accordingly, we find that the tr ial court was correct in granting Defenda nt’s motion for summary judgment. The trial court’s decision is affirmed, and the appeal dismissed. Costs on appeal are taxed to Appellants for which execution may issue if necessary.

_______________________________ FARMER, J.

______________________________ LILLARD , J. (Concurs)

______________________________ SUMMERS, Sp. J. (Concurs by Separate Opinion)