1

FILED

April 14, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

RUTH FRIAR, ) C/A NO. 03A01-9710-CV-00470

)

Plaintiff-Appellee, )

)

)

)

v. ) APPEAL AS OF RIGHT FROM THE

) ANDERSON COUNTY CIRCUIT COURT

)

)

)

)

THE KROGER COMPANY, )

) HONORABLE JAMES B. SCOTT, JR.

Defendant-Appellant.) JUDGE

For Appellant For Appellee

ARCHIE R. CARPENTER BRUCE D. FOX

CHRISTOPHER HEAGERTY Ridenour, Ridenour & Fox

Carpenter & O’Connor Clinton, Tennessee

Knoxville, Tennessee

JOHN A. DAY

DONALD CAPPARELLA

Branham & Day, P.C.

Nashville, Tennessee

O P I N I O N

AFFIRMED AND REMANDED Susano, J.
2

Ruth Friar sued The Kroger Company (“Kroger”) seeking

damages for personal injuries sustained when she fell in Kroger’s

Oak Ridge store. The trial court approved the jury’s verdict for

the plaintiff and entered judgment in her favor for $210,000. 

Kroger appealed, presenting the following issues, as taken

verbatim from its brief:

1. That there is no evidence upon which to

sustain a verdict for the Plaintiff and that

it was error for the Court to allow argument

about and instruct the jury about notice by

method of operation.

2. That it was error for the court to allow

Plaintiff’s attorney to discuss in Voir Dire

other similar cases with large verdicts.

3. That it was error for the Court to tell

the Jury that it should reduce any damages

awarded by the percentage of fault attributed

to the Plaintiff and direct it to do so on

the verdict form.

I.

We embark upon our review of the facts in this case

ever mindful of the limited nature of our appellate jurisdiction

in jury cases:

It is the long established 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 to decide where

the preponderance lies, but are limited to

determining whether there is material

evidence to support the verdict; the

appellate court is required to take the

strongest legitimate view of all of the

evidence in favor of the verdict, to assume

the truth of all that tends to support it,

allowing all reasonable inferences to sustain

the verdict, and to discard all to the

contrary. Having thus examined the record,
1

All references in this opinion to parts of the store are from the

perspective of one on the outside facing the front of the store.

3

if there be any material evidence to support

the verdict, it must be affirmed; if it were

otherwise, the parties would be deprived of

their constitutional right to trial by jury.

[Citations omitted].

Electric Power Board of Chattanooga v. St. Joseph Valley

Structural Steel Corporation, 691 S.W.2d 522, 526 (Tenn. 1985). 

See also Truan v. Smith, 578 S.W.2d 73, 74 (Tenn. 1979). Our

role is clear: we must scour the record in search of evidence of

facts, and reasonable inferences from facts, that tend to support

the verdict for the plaintiff. In the process, we must ignore

facts that tend to support Kroger’s defensive positions. Our

inquiry into the facts ends if and when we find material evidence

to support the jury’s verdict, regardless of the quantum of

evidence to the contrary.

II.

On the morning of November 21, 1994 -- Monday of

Thanksgiving week -- the plaintiff, who was then approximately 72

years old, went to Kroger’s Oak Ridge store to shop for

Thanksgiving dinner. She found the store crowded with shoppers. 

She had been shopping in the store for about 20 minutes when she

went to the store’s dairy section. This section is generally

located in the back left corner of the store.1 According to

Kroger’s drawn-to-scale diagram of the internal layout of the

store, the dairy section includes a multi-door upright cooler

containing milk, orange juice, and the like, located along the
4

left back wall of the store; an open dairy case with biscuits,

butter, and similar products that runs along the left wall on a

diagonal from the back wall; and two free-standing, open-at-thetop dairy coolers with cheese products, which coolers are

parallel with and eleven feet out from the open dairy case.

The plaintiff selected a few items from the open dairy

case along the left wall. As she stepped back from the dairy

case toward one of the free-standing dairy coolers, she stepped

in something that caused her to fall. As a result of the fall,

the plaintiff broke her hip and kneecap. The “something” in

which the plaintiff stepped was a piece of cardboard laid over

the remnants of a dropped glass jar of turkey gravy.

III.

Generally speaking, the owner or operator of premises

is subject to liability for allowing a dangerous or defective

condition to exist on its premises if the condition (1) was

created by it or its agent, or (2) was created by someone other

than the proprietor or its agent and the proprietor had actual or

constructive notice that the condition existed prior to the

accident. Hardesty v. Service Merchandise Co., 953 S.W.2d 678,

682 (Tenn.App. 1997), perm. app. denied; Martin v. Washmaster

Auto Center, U.S.A., 946 S.W.2d 314, 318 (Tenn.App. 1996), perm.

app. denied; Chambliss v. Shoney’s Inc., 742 S.W.2d 271, 273

(Tenn.App. 1987); Jones v. Zayre, Inc., 600 S.W.2d 730, 732

(Tenn.App. 1980).
5

In the instant case, there is absolutely no evidence

that a Kroger employee dropped the jar of turkey gravy or was

otherwise directly responsible for creating the condition that

caused the plaintiff to fall. Therefore, we will not further

discuss this aspect of a proprietor’s liability.

The liability of a business proprietor to a customer

for a dangerous condition created by someone other than the

proprietor or its agent is addressed in the case of Simmons v.

Sears, Roebuck & Co., 713 S.W.2d 640 (Tenn. 1986):

The duty owed by a business proprietor to a

customer “is to exercise reasonable care to

keep the premises in a reasonably safe and

suitable condition, including the duty of

removing or warning against a dangerous

condition traceable to persons for whom the

proprietor is not responsible... if the

circumstances of time and place are such that

by the exercise of reasonable care the

proprietor should have become aware of such

condition.”

Id. at 641 (citing Allison v. Blount Nat’l Bank, 390 S.W.2d 716,

718 (Tenn.App. 1965)).

Generally speaking, a proprietor’s liability for a

dangerous condition that is “traceable to persons for whom the

proprietor is not responsible,” see Simmons, 713 S.W.2d at 641,

is based upon the proprietor’s actual or constructive notice of

the dangerous condition. In order to predicate liability on

actual notice, there must be evidence from which the jury could

conclude that the defendant had actual notice prior to the

accident such that it had a reasonable opportunity to correct or
6

warn against the condition before the accident occurred. See

City of Knoxville v. Ferguson, 241 S.W.2d 612, 615 (Tenn.App.

1951).

The basic rule of constructive notice in premises

liability cases is this: “[i]f liability is to be predicated on

constructive knowledge by the Defendant, the proof must show the

dangerous or defective condition existed for such length of time

that the Defendant knew, or in the exercise of ordinary care

should have known, of its existence,” Hardesty, 953 S.W.2d at

682; Martin, 946 S.W.2d at 318; Ogle v. Winn-Dixie Greenville,

Inc., 919 S.W.2d 45, 46 (Tenn.App. 1995); Chambliss, 742 S.W.2d

at 273; Jones, 600 S.W.2d at 732; Self v. Wal-Mart Stores, Inc.,

885 F.2d 336, 338-39 (6th Cir. 1989); or, stated another way,

“there must be material evidence from which the trier of fact

could conclude the condition existed for sufficient time and

under such circumstances that one exercising reasonable care and

diligence would have discovered the danger.” Paradiso v. Kroger

Co., 499 S.W.2d 78, 79 (Tenn.App. 1973); Beske v. Opryland USA,

Inc., 923 S.W.2d 544, 546 (Tenn.App. 1996), perm. app. denied.

It has been held that “[w]here there is a complete

absence of proof as to when and how the dangerous condition came

about, it would be improper to permit the jury to speculate on

these vital elements.” Hardesty, 953 S.W.2d at 683; Ogle, 919

S.W.2d at 47; Chambliss, 742 S.W.2d at 273; Paradiso, 499 S.W.2d

at 80. Thus, to establish constructive notice on the part of the

defendant, the plaintiff must make some showing as to the length
7

of time that the dangerous condition was present prior to the

accident. Hardesty, 953 S.W.2d at 682, 683; Self, 885 F.2d at

338. However,

[t]he length of time the condition existed is

not the only factor to be considered in

determining whether or not the proprietor had

constructive notice of the danger. One must

take into consideration the nature of the

business, its size, the number of patrons,

the nature of the danger, [and] its location

along with the foreseeable consequences.

Paradiso, 499 S.W.2d at 79; Allison, 390 S.W.2d at 719.

The above rules regarding constructive notice generally

apply “in slip and fall cases involving a ‘transitory, temporary

or unusual’ defect, condition or accumulation of foreign

substances on floors.” Stinson v. Wal-Mart Stores, Inc., No.

1:95-CV-232, slip op. at 3 (E.D.Tenn. June 7, 1996), aff’d, 124

F.3d 199 (6th Cir. 1997)(no published opinion)(citing Self, 885

F.2d at 339). However, in cases in which the presence of the

particular hazardous condition is shown to be a common -- rather

than a transitory -- occurrence, the requirement of notice is

satisfied where the plaintiff proves that “the defendant’s method

of operation created a hazardous situation foreseeably harmful to

others.” Martin, 946 S.W.2d at 318. This “method of operation”

theory has been stated as follows:

[w]here a proprietor knows or has reason to

know that his customers are regularly

dropping hazardous debris on his floor or

steps, the Tennessee cases teach that the

proprietor must take reasonable precautions
8

to protect customers from injuring themselves

on it.

Self, 855 F.2d at 339.

Under the method of operation theory, the questions to

be asked are these:

(1) whether the condition created by the

chosen method of operation constitutes a

hazardous situation foreseeably harmful to

others;

(2) whether the proprietor used reasonable

and ordinary care toward its invitees under

these circumstances; and

(3) whether the condition created was the

direct and proximate cause of the plaintiff’s

injury.

Martin, 946 S.W.2d at 320 (quoting Hale v. Blue Boar Cafeteria

Co., an unreported decision of the Court of Appeals filed at

Jackson on February 21, 1980); see also Maxwell v. Red Food

Stores, Inc., C/A No. 88-110-II, 1988 WL 95273 at *4 (Tenn.App.,

M.S., filed September 16, 1988, Lewis, J.). Thus, proof that a

dangerous condition is a common occurrence created by a

proprietor’s method of operation raises a jury question as to

whether the proprietor took reasonable precautions to protect its

customers from injury. Martin, 946 S.W.2d at 318; Barrett v. Red

Food Stores, Inc., C/A No. 01A01-9108-CV-00302, 1992 WL 33891 at

*5 (Tenn.App., M.S., filed February 26, 1992, Lewis, J.). “Of

course, the customer is also required to use reasonable care for

his or her own safety.” Blue Boar, slip op. at 6.
9

In the “method of operation” cases, “the courts have

backed away from the strict application of the actual or

constructive notice requirement.” Wilson v. Target Stores, Inc.,

C/A No. 03A01-9209-CV-00322, 1993 WL 30617, *3 (Tenn.App., W.S.

at Knoxville, filed February 10, 1993, Crawford, J.). The threequestion analysis in Martin, Blue Boar, and Maxwell “completely

omits any requirement of notice under the theory that a defendant

who has created a dangerous condition needs no notice of what he

has done.” Martin, 946 S.W.2d at 320. However, “this Court has

begun to articulate the [m]ethod of [o]peration theory in terms

of constructive notice.” Id.; see Worsham v. Pilot Oil Corp.,

728 S.W.2d 19, 20 (Tenn.App. 1987)(“the requirements of

constructive notice may be met where a dangerous condition inside

a self-service business is not an isolated one but is reasonably

foreseeable to the owner because the condition is established by

a pattern of conduct, a recurring incident, or a general or

continuing condition....”) Recently, the courts “have focused

almost entirely on determining whether there is a pattern of

conduct, a recurring incident or a general or continuing

condition indicating the dangerous condition’s existence.” 

Martin, 946 S.W.2d at 320 (citing Beske v. Opryland USA, Inc.,

923 S.W.2d 544, 546 (Tenn.App. 1996)). 

IV.

Kroger strenuously argues that there is no evidence

that it had actual or constructive notice of the cardboardcovered turkey gravy and glass such as would render it liable to

the plaintiff. It also contends that the evidence in this case
2

The parties agree that the manager meant to identify the time as 11:40

a.m.

10

does not present a factual scenario of the type contemplated by

the method of operation theory of premises liability.

There is evidence in this record that, on the morning

in question, an unidentified shopper reported to a Kroger manager

at the Customer Service station in the front of the store that

there was a dangerous condition on the floor in the dairy section

of the store. The manager’s written incident report is in the

record:

I was in Customer Service at approximately

11:40 p.m. [sic]2 assisting customers. A

customer notified me that she almost fell in

the dairy aisle. She stated that there was a

spill or something in the floor that almost

caused her to fall, and that we better get it

up before someone else falls. I thanked her

for reporting the situation, and she left. I

immediately told Connie Harrell, who was

floor supervising, about the spill. At this

time she sent a courtesy clerk to clean up

the spill. When the courtesy clerk arrived

to clean up the spill Mrs. Friar had already

fallen.

David Riker, the courtesy clerk who was dispatched to the scene,

testified that when he arrived in the dairy section, the

plaintiff had already fallen.

While there is clearly evidence in this record of

actual notice of a dangerous condition on the floor in the dairy

section, that does not conclude our inquiry. We must next

determine whether the defendant had actual notice prior to the

accident and sufficiently in advance of the accident to take
11

reasonable steps to correct the danger or warn of its existence. 

In this case, there is no evidence, direct or circumstantial,

that the Kroger manager was advised of the spill before the

plaintiff fell. It is obvious from the record that the plaintiff

had not fallen when the “reporting” patron herself almost fell. 

By the same token, it is likewise clear that she had not fallen

when the patron started toward the front of the store to report

the spill. However, we do not know from this record whether the

plaintiff fell before or after this patron reached the front of

the store and made her report to a store manager.

The plaintiff argues that instead of paging a courtesy

clerk to the front of the store and then dispatching him to the

site of the spill, the manager or his designee should have given

a warning over the intercom that there was a dangerous condition

on the floor in the dairy aisle; but this argument runs afoul of

the same sequence-of-events problem addressed in the preceding

paragraph. We simply have no proof that the defendant had

sufficient advance notice to prevent this accident. Since we do

not know when the plaintiff fell in relation to the point in time

that the Kroger manager received the report of the spill, we

cannot say that, had Kroger acted as expeditiously as humanly

possible, the accident could have been prevented. The person who

reported the spill had to walk a considerable distance from the

site of the spill to the Consumer Service area in order to report

the spill. It is no more logical to assume that the plaintiff

fell after the report to the Kroger manager than it is to assume

that she fell before the patron reached the Customer Service

area. See Martin v. Washmaster Auto Center, USA, 946 S.W.2d 314,
12

317 (Tenn.App. 1996) (“...the jury is not permitted to engage in

conjecture, speculation, or guesswork as to which of two equally

probable inferences is applicable.”) Therefore, liability in

this case cannot be predicated on actual notice.

The issue of constructive notice is a different matter. 

We believe that there is material evidence in this case to

support a jury verdict in favor of the plaintiff on the theory of

constructive notice.

Exhibit number 1 in this record is a blown-up diagram

of the inside of the store. It reflects that it was prepared by

the Facility Engineering Department of Kroger. It is labeled a

“Fixture Plan”; is drawn to scale (1/8 inch equals 1 foot); and

shows the location of, and drawings of, the various food

counters, shelves, coolers, checkout counters and other fixtures

in the store. As far as the various fixtures are concerned, the

diagram was presented to the jury as an accurate layout of the

store at the time of the plaintiff’s fall. This exhibit

constitutes material evidence illuminating the testimony and/or

movements of the plaintiff; the “eyeball witness” -- an

individual by the name of Barbara Beatty; store personnel; and

the unidentified shopper who originally reported the spill to

Kroger’s manager.

Ms. Beatty testified that she was shopping in Kroger’s

Oak Ridge store on the morning in question. After shopping in

the grocery aisles to the right of her point of entrance, she

made her way to the meat department located in the back of the
13

store. Exhibit 1 reflects that when she was positioned at the

meat counter, she was then approximately 100 feet from, and to

the right of, the general area in which the plaintiff fell. Ms.

Beatty testified that when she reached the meat counter, she

ordered a steak. She waited while the butcher weighed the steak,

wrapped it, and then put a sticker on it. While she was in the

meat area -- a period of time that is not expressly quantified in

the record -- she did not hear the sound of glass breaking. 

Exhibit 1 reflects a relatively clear path for hearing from the

meat department to the place in the dairy section where the

plaintiff later slipped and fell.

From the meat department, Ms. Beatty proceeded to her

left and down the back side of the store to the dairy section. 

While in the dairy section, she saw the spill on the floor. It

was located near the inside of one of the free-standing dairy

coolers which, as previously indicated, were located out from the

wall dairy case. Exhibit 1 reflects that the free-standing

coolers are located eleven feet from the wall case. This eleven

feet of space is designed to be an aisle in the dairy section of

the store. It was while Ms. Beatty was in this aisle that she

first noticed the spill.

Ms. Beatty testified that she had been aware of the

spill for about five minutes when she saw an unidentified person

place a piece of cardboard over the spill. She was unable to say

whether that individual was a Kroger employee or a store patron. 

In any event, Ms. Beatty’s testimony -- when construed most

favorably to the plaintiff -- is that it was an additional two to
14

five minutes later when she saw the plaintiff slip and fall on

the area of glass and turkey gravy covered by the cardboard. It

is significant to recognize that this combined period of seven to

ten minutes came after a period of time during which Ms. Beatty

was in the immediate area without hearing the breaking of glass.

The plaintiff testified that she was shopping in the

aforesaid eleven-foot aisle of the dairy section when she turned

around and slipped and fell on the mess described in the

preceding paragraph. She did not see this spill before she fell.

There was evidence that the Kroger store was crowded

that day with pre-Thanksgiving Day shoppers. There was also

evidence that the store had increased its normal staff to handle

the busy Thanksgiving-week traffic. Even at that, the grocery

manager testified that while he normally walked through the store

15 to 20 times a day, that morning he had only had time to walk

through the dairy section, which was specifically included within

his area of responsibility, three or four times. A jury could

conclude from all of this evidence that Kroger was under-staffed

at the time of the plaintiff’s fall during the busy Thanksgiving

shopping period.

There is a dispute in the record as to whether a

particular Kroger employee -- whose responsibility it was to

sweep the floor -- was present in the dairy area shortly before

the plaintiff’s fall. Suffice it to say that the jury had

evidence before it which, if believed, would tend to show that

the employee in question was not in the area at or around the
3

Kroger’s incident report reflects that Mrs. Friar fell at 10:40 a.m.;

however, it is clear from the testimony that this is an approximation.

15

time of the plaintiff’s fall. This is significant because that

employee signed a statement that he “was sweeping the store from

10:00 - 11:00 a.m. and found no sign of any spill on the dairy

aisle,” and because another employee testified that the

individual who signed the statement told him that he had been in

the area of the fall five minutes before the plaintiff slipped.

A Kroger employee working in the dairy section

testified that he clocked out for lunch at 11:06 a.m., and

clocked back in at 11:35 a.m. His time record supports these

times. He testified that he did not see the spill when he left

the dairy section to go to lunch, and that when he returned to

the section after clocking in at 11:35 a.m., the plaintiff was

already on the floor being attended to.3 However, it should be

noted that the record clearly reflects that the site of the spill

was close to a mobile bin that was then being used by the store

as a receptacle for discarded cartons. The dairy section

employee testified that there had been nothing to prevent him

from returning the mobile bin to storage before he went to lunch,

but that he simply had elected not to do so. From certain

angles, the mobile bin tended to block the spill from view.

In the instant case, there were a number of “factor[s]

to be considered” on the subject of constructive notice. See

Paradiso, 499 S.W.2d at 79. We find material evidence to support

the conclusion that the “circumstances of time and place are such

that by the exercise of reasonable care the proprietor should
16

have become aware of [the dangerous] condition.” Simmons, 713

S.W.2d at 641. This is not a case where the plaintiff is unable

to show what it was that he or she slipped on. Cf. Martin, 946

S.W.2d at 318; Maxwell, 1988 WL 95273 at *3. By the same token,

this is not a case where the plaintiff is unable to show how long

the dangerous condition existed. Cf. Hardesty, 953 S.W.2d at

683; Ogle, 919 S.W.2d at 47; Jones, 600 S.W.2d at 732. In this

case, we know what the plaintiff stepped in, and we know it had

been there for some period of time.

Disregarding all evidence against the verdict and

construing the evidence in the strongest light to sustain the

verdict, we are left with evidence that the spill was on the

floor for a little less than ten minutes, plus the period of time

that Ms. Beatty was in the general area and did not hear the

breaking of glass. A reasonable inference from her failure to

hear the jar break is that the jar of turkey gravy had been

dropped before Ms. Beatty entered the general area of the meat

and dairy sections. While we do not know how long Ms. Beatty was

in the area before she saw the spill, we do know that the jury

had before it the diagram, photographs of the interior of the

store, testimony that the store was crowded, and testimony as to

what Ms. Beatty was doing during the time that she did not hear

breakage. The jurors also had their own shopping experiences in

large supermarkets. They did not shed those experiences when

they entered the courthouse. They could evaluate all of the

relevant evidence, including the testimony of the plaintiff and

Ms. Beatty, in light of their own shopping experiences in such

stores.
17

In summary, the record, when examined so as “to take

the strongest legitimate view of all of the evidence in favor of

the verdict,” see Electric Power Board of Chattanooga, 691 S.W.2d

at 526, reflects direct, circumstantial, and inferential,

evidence tending to show: that a dangerous condition existed on

the floor at the time of the plaintiff’s fall; that the dangerous

condition had existed on the floor for upwards of ten minutes

plus an additional period of time, as reasonably measured by the

jury, representing the time that Ms. Beatty was in the general

area of the dairy section and did not hear glass breaking; that

the attention of shoppers, such as the plaintiff, would be

focused primarily --as intended by Kroger -- not on the floor,

but on the shelves and other display devices on and in which the

store’s products were presented for sale; that the dangerous

condition had been partially blocked from the view of shoppers by

a mobile bin that could and should have been off the floor; that

Kroger knew that more customers usually meant more spills and

breakage; that the Kroger manager responsible for the dairy

section had failed to patrol the store as often as he had

previously determined was necessary because Kroger failed to have

sufficient people on duty to service the increased number of

shoppers during Thanksgiving week -- a crowd that Kroger had

anticipated; and that Kroger had been less than candid as to

whether an employee with sweeping and mopping responsibilities

had been in the area of the dangerous condition around the time

of its creation.

When all of the above is considered, we believe that

there was “material evidence from which the trier of fact could
18

conclude the condition existed for sufficient time and under such

circumstances that one exercising reasonable care and diligence

would have discovered the danger.” Paradiso, 499 S.W.2d at 79. 

In this case, the issue of reasonableness was for the jury. This

is certainly not a case where the facts and inferences are such

as to require a court to find that reasonable minds could only

conclude that Kroger had acted in a reasonable manner in light of

all of the circumstances.

The appellant’s issue with respect to a lack of

material evidence to support the verdict is found to be without

merit.

V.

Kroger contends that counsel for the plaintiff made

improper statements during voir dire that warrant reversal of the

trial court’s judgment. Kroger relies upon cases condemning the

practice of counsel referring to awards in other cases during

closing argument for the purpose of “influenc[ing] the jury in

fixing the amount of damages, or where the tendency of the same

may be to influence the jury in fixing the damages.” See Mayor,

Etc., of City of Jackson v. Pool, 91 Tenn. 448, 19 S.W. 324, 326

(1892). See also Pullman Co. v. Pennock, 118 Tenn. (10 Cates)

565, 569 (1907); Tubb v. Boyd, 13 Tenn.App. 432 (1931).

In the instant case, counsel for the plaintiff, during

the course of his voir dire, inquired of a number of prospective

jurors as to whether they felt that a jury could be trusted to
19

properly assess compensatory damages. He asked the jurors if

they were aware of the widely-reported case wherein McDonald’s

was ordered by a jury to pay substantial damages to a plaintiff

who had been burned when overheated coffee fell in her lap. As a

part of this inquiry, counsel asked the prospective jurors, over

Kroger’s objection, if they were aware of certain facts in that

case -- facts which, according to counsel, were not widely

reported -- that tended to support the jury’s verdict.

We agree with Kroger that counsel should not have been

allowed to tell prospective jurors about what he understood were

the facts of the McDonald’s case. This was improper because it

injected facts into the voir dire that were not widely reported

and may or may not have been true; but counsel’s practice must be

viewed in the context of his obvious motivation: he wanted to

impress upon the jury his view that the widely-reported

McDonald’s case had been misreported by some in an attempt to

“poison” potential jury pools throughout the country. He used

the “facts” that he had learned about that case in his

questioning in an attempt to persuade the jurors that they should

not conclude from this misreporting that the jury system was “out

of control.” He repeatedly asked prospective jurors if they felt

that a jury could fairly assess damages in a case such as the

instant litigation. He brought up the following “facts” about

the McDonald’s case: that the plaintiff in that case had

suffered third degree burns and had incurred over $200,000 in

medical bills; that the company had reported that over 3,000

people per year were burned as a result of overheated coffee;

that McDonald’s had overheated its coffee to increase coffee
20

sales; that McDonald’s earns $2.1 million in profits from coffee

sales each day; and that the trial judge in that case had reduced

the jury’s award.

While we believe that counsel’s suggestion of these

alleged facts was improper, we find no abuse of discretion on the

part of the trial judge in permitting counsel to discuss aspects

of the case that were widely reported, in an attempt to determine

whether the impartiality of any of the prospective jurors had

been “infected” by the reporting of this celebrated case. 

Potential jurors do not live in a vacuum. Their attitudes are

affected by that to which they are exposed. It is important to

ensure that a jury’s impartiality has not been adversely affected

by the media blitzes -- from the defendant’s side as well as from

the plaintiff’s side -- that are all too common in the world in

which we live. Having said all of this, we hasten to add that

this type of inquiry must be conducted under the close

supervision of the trial judge, acting within his sound

discretion.

The cases cited by Kroger are not applicable for

several reasons. First, those cases pertain to closing argument

and not voir dire; and, second, the remarks in the instant case

were clearly not designed to influence the jury to compare this

case to the McDonald’s case so that it would return a large award

for the plaintiff. It is clear beyond any doubt that the

questions were designed to ferret out individuals who would be

less inclined to award adequate damages because of their belief

that juries were “out of control” in awarding unwarranted

damages. In any event, there is no indication that counsel’s
21

remarks and questions resulted in an excessive award -- as

somewhat evidenced by the fact that Kroger does not contend on

this appeal that the award is excessive. In fact, the award is

reasonable given the plaintiff’s injuries, course of treatment,

and prognosis. Furthermore, it is worth noting that the facts of

the McDonald’s case are completely different from those of the

instant case. We find no basis for arguing that counsel referred

to the McDonald’s case in an attempt to induce the jury to

compare the two cases and thereby render an excessive award.

A party, through counsel, has the right to inquire into

a potential juror’s “biases.” See Painter v. Toyo Kogyo of

Japan, 682 S.W.2d 944, 947 (Tenn.App. 1984). In the Painter

case, this court addressed voir dire:

Our courts have explained that “[t]he purpose

of voir dire examination of prospective

jurors is to enable counsel to become

acquainted with their qualifications,

interests, or biases, as a matter of

fact,...and to enable counsel to exercise

peremptory challenges.” Wallis v. State, 546

S.W.2d 244, 249 (Tenn.Cr.App. 1976).

[citations omitted]. See generally 47

Am.Jur.2d Jury § 195 (1969), where it is

stated that:

“[f]ull knowledge of all relevant

and material matters that might

bear on possible disqualifications

of a juror is essential to a fair

and intelligent exercise of the

right of counsel to challenge

either for cause or peremptorily. 

Accordingly, litigants are granted

the right to examine prospective

jurors on their voir dire in order

to enable them to select a jury

composed of men and women qualified

and competent to judge and

determine the facts in issue

without bias, prejudice, or

partiality.”
22

With the purpose stated above in mind, it is

reasonable that:

“[a] wide latitude is allowed

counsel in examining jurors on

their voir dire. The scope of

inquiry is best governed by a wise

and liberal discretion of the

court, but the adverse litigants

should be given the right to

inquire freely about the interest,

direct or indirect, of the proposed

juror, that may affect his final

decision. Thus, reasonable

latitude should be given parties in

the examination of jurors to gain

knowledge as to their mental

attitudes toward the issues to be

tried, for the purpose of aiding

them in striking jurors if they are

not successful in challenging them

for cause.”

47 Am.Jur.2d, supra, § 201.

The rule that trial judges possess wide

discretion in overseeing jury voir dire is

well supported in this jurisdiction. 

Specifically, our Court of Criminal Appeals

has stated that “[t]he trial judge has wide

discretion in controlling examination of

prospective jurors and his action will not be

disturbed on appeal unless there was an abuse

of that discretion.” [Citations omitted].

Id. at 947-48.

We find no abuse of discretion in the trial court’s

decision to allow counsel to question the prospective jurors

regarding the widely-reported McDonald’s case. To the extent

that the court permitted counsel to tell the jurors about

counsel’s version of certain facts of that case that were not

widely reported, we cannot say that this constituted error that

more likely than not affected the judgment. See Rule 36(b),

T.R.A.P.

VI.
23

A.

Kroger contends that the trial court erred in charging

the jury regarding the method of operation theory of liability

and in permitting counsel for the plaintiff to argue this theory

to the jury.

The plaintiff argued at trial, and argues here, that

spills and breakage were not unusual occurrences at Kroger’s Oak

Ridge store. She calls our attention to the testimony of store

employees to the effect that spills and breakage were a common,

every-day occurrence. The plaintiff points out that Kroger’s

Housekeeping Record reflects that cleanups unrelated to general

cleaning activities occurred 18 times during Thanksgiving week. 

She also points out that there were 51 such cleanups in the month

of November, 1994. She calls our attention to testimony

indicating that there were spills and breakage that were not

recorded on the Housekeeping Record. She contends that this

evidence brings this case within the method of operation theory

of liability.

In this case, the trial court gave a complete and

accurate charge regarding the liability of a proprietor for

maintaining a dangerous or defective condition on its premises. 

The charge includes the method of operation theory of liability,

as set forth earlier in this opinion.

We agree with Kroger that the facts of this case do not

even arguably fall within the method of operation theory. We

know of no case extending this theory to a factual pattern
24

similar to the one presented in this case. We agree with the

following statement from the decision of the federal district

court in the case of Stinson v. Wal-Mart Stores, Inc., No. 1:95-

CV-232, slip op. at 5 (E.D. Tenn. June 7, 1996), aff’d, 124 F.3d

199 (6th Cir. 1997)(no published opinion):

[w]hile discarded debris generally may be a

common or everyday occurrence within the

defendant’s store, the common occurrence

theory has only been applied in cases where

particular debris has been discarded in a

particular area, so that the defendant owner

or operator knew or should have known of the

dangerous condition created thereby.

The dangerous condition in this case was not “created” by

Kroger’s method of operation as that concept is addressed in the

various cases relied upon by the plaintiff.

The facts of this case simply do not fit within the

ambit of the method of operation theory of liability; however,

this does not mean that either the plaintiff’s argument or the

trial court’s charge with respect to this theory amounts to

reversible error in this case.

The jury returned a general verdict. T.C.A. § 20-9-502

provides as follows:

If any counts in a declaration are good, a

verdict for entire damages shall be applied

to such good counts.

In Tutton v. Patterson, 714 S.W.2d 268 (Tenn. 1986), the Supreme

Court reviewed a jury’s general verdict for the plaintiff in a
25

situation where there was no evidence to support one theory of

recovery, but evidence to support other theories:

Tennessee courts have held on the basis of

the above quoted statute that a trial court’s

erroneous instruction on one count of a

multicount suit is harmless error if its

instructions as to the other counts were

proper. [citations omitted]. “[A] general

verdict approved by the trial judge is not

vitiated by the absence of proof on one or

more counts of the declaration if there is

evidence to sustain the averments of a single

count.” [citations omitted].

In Bloodworth v. Stuart, supra, plaintiff

relied upon two separate theories; the

attractive nuisance doctrine, and the

playground doctrine. The trial judge in his

charge submitted both theories to the jury.

The jury returned a general verdict for

plaintiff. On appeal, this Court found that

the trial judge erred in not directing a

verdict for the defendant on the attractive

nuisance count. There was material evidence

in the record from which the jury could

conclude that the playground doctrine

applied; thus applying T.C.A. § 20-9-502,

this Court held that “[h]aving found the jury

was justified in finding liability under the

count of the declaration based on the

playground doctrine, the verdict will be

applied to that count.” 221 Tenn. at 577,

428 S.W.2d 786. Justice Dyer, in his

dissent, argued that an erroneous instruction

in regard to a multiple count case can be

reversible error even though proper

instructions were given as to other counts

being litigated. He concluded that the

defendant was prejudiced by submission to the

jury the attractive nuisance count.

In this case Defendant contends that the

trial judge erred in submitting the vicarious

liability count to the jury. We are of the

opinion that the trial court’s erroneous

instruction in regard to this count is

harmless error, having found that the jury

was justified in finding the Defendant liable

under either of the other two counts. 

Bloodworth v. Stuart, supra. We cannot say

that after “considering the whole record,”

the erroneous charge “more probably than not

affected the judgment.” Rule 36(b), T.R.A.P.
4

The jury found damages of $300,000. It assessed Kroger’s fault at 70%.

26

Tutton, 714 S.W.2d at 271. As we have previously discussed in

some detail, there was material evidence in the instant case to

support a finding of liability under a constructive notice theory

of recovery; hence, there was a theory of liability to which the

jury’s general verdict could be applied.

We find, as did the Tutton court, that, considering the

record as a whole, the trial court’s error in charging the method

of operation theory was not of such a magnitude to have “more

probably than not affected the judgment.” Rule 36(b), T.R.A.P. 

See also Bloodworth v. Stuart, 528 S.W.2d 786 (Tenn. 1968).

This issue is found adverse to Kroger.

B.

Kroger argues that the trial court erred in explaining

to the jury that the court would reduce the amount of damages

found by the jury by the percentage of fault assessed to the

plaintiff.4 Kroger points to the following language in McIntyre

v. Balentine, 833 S.W.2d 52 (Tenn. 1992):

In all trials where the issue of comparative

fault is before a jury, the trial court shall

instruct the jury on the effect of the jury’s

finding as to the percentage of negligence as

between the plaintiff or plaintiffs and the

defendant or defendants. [Citation omitted]. 

The attorneys for each party shall be allowed

to argue how this instruction affects a

plaintiff’s ability to recover.
27

Id. at 57. Kroger contends that this language “only requires the

Court to explain that the plaintiff cannot recover unless he or

she is less than fifty percent at fault.” According to Kroger,

any further explanation creates the risk that the jury will, in

effect, pre-determine the plaintiff’s ultimate recovery by

inflating its award of damages, thereby offsetting the effect of

any reduction for the plaintiff’s own percentage of fault.

We find that the trial court’s instruction was in

strict accordance with the principles of McIntyre. We reach this

conclusion based upon the “suggested jury instructions” set forth

by the Supreme Court in the appendix to the McIntyre opinion. 

Those instructions provide, in pertinent part, as follows:

... If, on the other hand, you determine from

the evidence that the percentage of

negligence attributable to plaintiff was less

than the percentage of negligence

attributable to defendant, then plaintiff

will be entitled to recover that portion of

his/her damages not caused by plaintiff’s own

negligence.

The court will provide you with a special

verdict form that will assist you in your

duties. This is the form on which you will

record, if appropriate, the percentage of

negligence assigned to each party and

plaintiff’s total damages. The court will

then take your findings and either (1) enter

judgment for defendant if you have found that

defendant was not negligent or that

plaintiff’s own negligence accounted for 50

percent or more of the total negligence

proximately causing his/her injuries or (2)

enter judgment against defendant in

accordance with defendant’s percentage of

negligence.

Id. at 59 (emphasis added).
28

In the instant case, the subject instruction accurately

states the law and is consistent with the instructions suggested

in McIntyre. We therefore find this issue to be without merit. 

To the extent that Kroger asks us to change the holding of

McIntyre, we are obviously without authority to do so. See

Bloodworth, 428 S.W.2d at 789.

VII.

The judgment of the trial court is affirmed. Costs on

appeal are taxed to the appellant and its surety. This case is

remanded to the trial court for enforcement of the judgment and

collection of costs assessed below, all pursuant to applicable

law.

__________________________

Charles D. Susano, Jr., J.

CONCUR:

________________________

Houston M. Goddard, P.J.

________________________

William H. Inman, Sr.J.