### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 7, 2003 Session SUSAN TAYLOR v. SQUARE D COMPANY Appeal from the Circuit Court for Rutherford County No. 43,748 Robert E. Corlew, III, Judge

No. M2002-01620-COA-R3-CV - Filed December 30, 2003
Disobeying

the direct orders of his supervisor, an elect rician began work on a substation without followin g the proper

safety proc edures. He was electrocuted a nd perished almost instantly. The widow of the electrician br ought su it a gainst the manufacturer of the substation, alleg ing that the manufacturer

was negligent and had

defectively

designed an unreasonably dangerous product. The trial court granted

summary judgme

nt for the manufacturer. Beca

use there are no material factua l disputes, and the negligence of the electrician was clearly greater than that of the manufa cturer, we affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded
P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM C HARLES LEE , Sp. J., joined. Robert L. Huskey , Manchester, Tennessee, for the a ppellant, Susan Taylor.
James H. Lo ndon, Libba Bond, L ori M. Ritter, Knoxville, Tennessee; Jeffrey L . Reed, Murfreesboro , Te nn es se e, fo r t he ap pe ll ee , S qu ar e D Co mp an y. OPINION
Susan Taylor broug

ht suit against Square D Company (“Square D”) seeking da

mages for the death of her husband, Michael Tay lor, which occurred at the Bosch Brakin g faci lity

in Clarksville, Tennes see
. Mr. Taylor, a journeyman electrician, was electrocuted while perf orming work on a su bstation. Mrs. Taylor alleg ed that the manufacturer, Square D, wa s negligent, or that the equipment

it supplied was defective in design and unreas on ab ly dangerous. Rely ing on several affida vits and depositions, Square D filed a motion for summary judgmen t, arguing that there wer

e no genuine issues of material fact and that they were entitled to judgment as a matter of law. After a hearing, the

trial cou rt gra nted summa

ry judgmen t for Squa re D. Mrs . Tay

lor appe als.1 De-energizing and locking out the equipment are processes used to complet ely s hut t he equipment

off a nd deenergi ze it. They include a procedure for testing the eq uipm ent to m ake su re that it is safe to work on. Every employ ee of Am prite is issue d a tag with his or he r pictur e on it for lock out purposes, and every employee has his or her own lock. -2- I. Undisputed Facts
The undis puted fa

cts show th

e following: Mr. T ay lor was e mployed by

Amprite E

lectric Company as an electrician. Amprite was installing a new electric al service for the Bosch Braking facility which included a double-ended fed substation. The unit is divided into two portions, referred to as a top bus and a

bottom bus. Each bus can work independently

. In other words, the top portion can be energized without thebottom portion being energized. The top bus is accessed by

a door; the bottom bus by a panel.
Over Labor Day

weekend 1999, the manufacturing facility was shut down so that the existing service could be d

isconnected and th

e new se rvice r equir ed by plant expansion, installed. On September

5, 1999, Mr. Taylor wa s working at theBosch B raking facility when he w as told by

his supervisor, superintendent and general fore man David Vari, that the high v oltage cables at the new penthouse

in substation 6 needed to be terminated, or completely shut down and de- energized so that new equipment could be installed. Square D manufa ctu red and a ssembled

the switchgear

in substation 6 that Mr. Taylor would be working on. The substation had 15 thousandvolt condu ctors.
At the time Mr . Tay

lor and Mr . Vari wa

lked to the

substation , the subst

ation waspartiall

y energized. Mr. Vari showed Mr. Tay lor which wires needed to go on which feeds, and how i t needed to be fed. The two then walked t o the re ar of the unit where the back cover had been removed, but the front covers of the switchgear w ere in place. There was y ellow caution tape in the area behind the substation. Mr. Vari told Mr. Taylor that the top portion or upper bus of the unit was energized, the lower bus or portion of the unit was de-e nergized.
Mr. Vari then told Mr. Taylor th at he w as goin g to go get help to de-energize and loc k out the switchgear. 1 Mr. Vari then left the area where the substation was located and walked toward the office when he h

eard an explosion. M

r. Vari r eturned to the substation where he found Mr. Taylor withhis clothes on fire. The front cover of the switchgear was removed and Mr. Tay lor’s legs were inside the lower portion of the unit. Mr. Taylor died a s a result of electrocution. Mr. Vari cou l d think of no circumstance in which y ou would need to get into the unit while it was energized.
Attached to Mr. Vari’s deposition were several accident reports and witness statements. The witness statemen

t taken by the Montg omery

County Sheriff’s Department and the witness statement Mr. Vari complete d for the Tenness ee Depa

rtment of Labo r, Divisio n of Occupationa l Safety and Health are consistent with the sequence of events that Mr. Vari descr ibed. A Supervisor’s Accident Inve stigatio n Report o f Persona l Inju ry was comp leted by

Mr. Vari for Ampr

ite. I t states:2 He was as sis ted in hi s ins pection of the equi pment by a f

ield s ervice techni cian f or Square D and sever al Am prite ele ctricians

. -3- Mike [Mr. Tay

lor] proceeded to

terminate 15 kv conductors after being instructed to wait for help and to lock-out the energized portion of the switch board. He removed the covered 15 kv switch and installed one conductor befor e shorting out

the switch.
The statemen

t indicate s that the a

ccid ent was t

he result of human error rather than fa ult in the equipment

because “Mike failed to follow instructions, safet y po lic y, safe w ork habits, and good judgment.”
BrianJohnson, a field services representative for Squar e D, was performing start-up testing on 480 volt breakers in the low voltage switchge ar i n the same penthouse that day on a different substation. The equipment that Mr. Johnson was working onwas not connected in any way to the equipment

that Mr. Taylor wa s working on. He was working with his back to M r. Tay lor at a distance of about 15 to 20 feet when he heard the explosion. When Mr. Johnson turned around, he saw Mr. Taylor

on his back with his clothing on fire. Mr. Johnson did not energize the substation that Mr. Taylor wa s working on, substation 6.
Mr. Lyle Lickiss, a seni or sta ff engi neer who inv estigated the accident for Square D, performed

an inspection of the Square D equipment at the Bosch Bra king facility on Septe

mber 7, 1999. He inspected the high voltage interr upter switch on the substat ion that M r. Taylor wa s working on at the time of the acc ident 2 and concluded that the switch was not defective or unreaso nably

dangerous. He opined that the switch should have been de-ener gized by Mr. Ta

ylor prior to his working on the switch and that the switch was unrelated to the low voltage switchboard sections which Mr. Johnson wasworking on at the t ime of the accide nt. Mr. L ickiss did not ge

nerate a report about the accident because he stated that he was not asked by le gal counsel for Square D to generate such a repor

t. In Mr. L

ickiss’s opinion, “Mr. Tay lor caus ed his own

accide nt. It was his negligent actions of not obey ing his foreman’s instructions.”
As an employ

ee of Amp

rite , Mr. Taylor ha

d received an Amprite Accident Prevention Program booklet. Subsection A of thebooklet st ated tha t employ ees wer e to “alw ay s de- ener

gize circuitsbefore working except when it’s not practica l as determined by the

job supervisor (See lock out/tag out policy

).” The booklet st

ates tha t:
The purpose of this procedure [the lock out/tag out pr ocedur e] is to prevent unexpected energization, start-up, or release of stored energy in order to p reven t in ju ry. It is to

be follow ed during

servicing and ma

intenanc e of ma

ch ines and equipment in which the “unexpected” start-up of the machine could oc cur. The person working on such project s is responsi

ble to see that the c ircuit is p

roperly lockedout. If an energ

y isolating device

is capable of being locked out, then a lock-4-

shallbe used. If it is not possible to use a lock, then the tag out system will be used. No one is to ever remove a tag other than the person who attached it.
The understanding of this procedure and the steps to follow could mean the difference between life a

nd death.
The Accident Prevention Program bo okl et states the purpose of the lock out/tag out procedu re as fo llows:

to establish the minimum requirements for the lockout of energy isolating devices whenever maintenance or servicing is done on machine s or equipment. It shall be used to ensure that the machine or equipment is stopped, isolated f rom all pot

entially hazardous energy

sources and locked out before employ ees perform any

servicing or maintenance where the unexpected energization or star t-up of t he machine or equipment or release of stored energ y could cause

injury. The Accident Prevention Program booklet also require s all employees to

. . . comply with the restrictions and limitations imposed upon them d

uring th e use of lockout. The authorized employee s are requi red to pe rform the lockout in accordance

with this pr

ocedure . All emplo ye es, upon observing a machine or piece of equipment whi ch is locked out to perform servicing or maintenance shall not attempt to start, energize, or use that machine or equipment.
The lock out/tag out procedure is also d escribed in a step-by -step fashion in the Accident Prevention Program booklet. Mr. Vari described the lock out/tag out procedur e that should have been followed on t

he day Mr. Tay lor was ki lled as fo llows:
We would ha ve went up to the power house and opened the switches that fed Substation 5 and 6 and locked them out. . . .we would went up there, opened them switches , locked them out, . . . which would have killed the power to the substation, lockedthem out and then got the high voltage gloves and the tester and tested it and grounded everything

out. Then once we seen that every thing was grounded out and there was no electrical charg e on there, we would then proceed work. According to an Amprite Accident Prevention Program Warning Notice , Mr. Taylor wa s issued a warning on September 22, 1998 that h e was “w orking o n Section - 0 of MT53- 1 machine s, withoutlock out/tag out of equipment.” Mr. Tay lor was disciplined and ordered to review the proper procedu res. He received the

infraction due to “negligenc e” and “potential harm to other employees.” The tech nical re cord als o contain s sign-i n sheets f rom “saf ety progra m” meetin gs held a

t Amprite that Mr. Taylor a

ttended wherein lock out/tag out procedures, sa fe ty glasses, hard hats, body harnesses, clean up, etc. were r eviewed on multiple occasions.3 The evidence s hows tha t Square D used gl asti c, a t hin poly mer of gl ass and pl asti c, to pr event ar cing bet ween the bla des w hich we re loc ated in the up per b us of the unit. -5- There were se

veral wa rning la bels on the substation that Mr. Taylor wa s working on in the penthouse. The first, located on the bottom cover that was removed by Mr. Taylor stated, “Danger, hazardof elec tric shock or burn. Turn off power supply in this equipment before working on or inside.” Two other warning labels stated, “Danger. High voltag e. Keep out.” and “Warning. Do notservice switchgear unless all conductors have been grounded according to a

n access ible safe

ty procedure.” The warning labels were all easily

visible and brightly c olored.
II . The Plaintiff’s Expert
Mr. G.H. Redden, the expert for the plaintiff and the father-in-law of Mr. Tay lor, filed three affida vits and gave deposition testimony in preparation for the trial court’s decision on the motion for summary judgmen t. His aff idavits notehis extensive electrical engineering e xperience and the fact that he pe rsonally examined th

e penthou se and substation 6 and the equipment the day after the accident

. While Mr. Redden had personally never designed a switch like the one Mr. Ta ylor was working on, he had worked with many of them over the course of his career . He felt that any g eneral electrician, like Mr. Taylor, would be famili ar with a

lock out/ta

g out pro cedure

and the ne

cessity of performing such a procedur e prior to commencing work on a piece of electrical equipment.
Mr. Redden felt that Mr. Vari’s affi davit was con tradicto ry , but had n o concre

te proof to dispute the sequence of events described by Mr. Vari. He felt that in order for Mr. Vari totell Mr. Taylor how to fe ed the wir

es in the s ubstation , it would ha ve been necessa ry for the p anels on the switching gear to be

removed by Mr. V ari. After looking at the equipment he opined that “the cables are inside the enclosure, and there’s steel sheet metal between - - that y ou can’t see through” and he “thought the cover was on since it was energized. It would be stupid to have it off if it’s energized. . . . I believe that one or both of them r emovedthat cover, and I think that the cover was removed in the presence of, at least, David Vari a nd probably Mike, too, because y ou hav e to be ab le to remove the covers to see how it’s connected.” When asked what fa ctual ba sis he had

to support

his opinion that

the covers were removed in that fashion, he r esponded, “many y

ears of experience that you don’t have covers off of a 15 thous an d volt switchgear exposed to hot live parts.” He arg ued that Mr. Vari’s testimony wa s that Mr. Taylor opened the panels to the switchgear after h e left to go get help to lock out/tag out the unit.
Mr. Redden a

lso disag reed wit h Mr. Johnson’s statement that the two substations were complete ly isolated from each other. He asserted that the units we re connected electrically , but again, had no concrete proof to rebut the testimony of Mr. Johnson.
Mr. Redden also contended that while the equipmen

t was not de

fective , it was unr

easonab ly dange rous. He felt thereshould have been some sort of insulating material or barrier between the upper and lower

portions of the unit, such as a thin sheet of glastic, 3 which would serve as a barrier for about 89% of the area involved and could have sa ved Mr. Taylor’s life. Mr. Redden admitted,-6-

however, that even with the addition of the glastic betwee n the uppe

r and low er portio ns of the u nit, arcing could still

occur. Mr. Redden also sugge sted that the equipment should have been designed so that there was no way

for it to be energized

while the covers were

removed . Mr. Redd

en also f elt that the unit itself was dangerous in that there was no re ason for any one to be able to remove the panels while the unit was energized, and that this ty

pe of “de ad-fro nt panel”was available to Square D.
II I. Trial Court’s Ruling
The trial court granted summary judgment for Square D. In dismiss ing Mrs. Tay lor’s law suit, the trial court found:
We have exam

ined the r

ecord, however , in detai l, and con ti nue to arrive at the unmistaka

ble concl usion that a substantial amount of the fault associated with the death of Mr. Ta ylo r unfort unately rests with

the deceased. Realizing, of course, that Mr. Tay lor is not a

vailable to present his version of the facts, the clear evidence from the surviving witnesses shows that Mr. Tay lor was a very

experienced electrician , and knew, or certainly

should have known, of the dangers he fa ced when he entered a high voltage switching mechanism without following pro per saf

ety procedu res. Based on Mr. T ay lor’s experience, it would appear that he knew, or should have known, that the proper safe ty procedures had not been followed. Furthe r, the evidence is uncontr

overted that Mr. T ay lor was to ld in no uncert ain terms that the safety procedures had not

yet been followed, a

nd thus he w as instructed to wai t until those safety proc edures were followed, the unit was de-e nergized, and a helper was provided to him.
The question before us, then, is whether as a matter of

law an ind

ividual c an be held to be less th an fifty

percen t at fault where, in a ligh

t most favorable to the Plaintiff, the deceased was experienced, knew of the danger s, knew that the switch, or at least a portion thereof, was ene rgized, knew tha

t proper safety procedu res req uir ed de

energizing the unit and a “lock out/tag out” procedure w hich was mandatory

and which th e employer

was preparing to implement had not been acc omplished, and where he was to ld not to enter the switch until it was de-energized, proper “lock out/tag out” procedur es were foll owed, and a helper was provided to him. The employer, of course, is protec te d b y the work ers’ co mpensatio n statutes , and fau lt cannot be assessed

to the emp loy er. The

only other fa ult which c ould

be apportioned is to the manufacturer of the switch. Aga in in a light most favorable to the Plaintiff, there is no evide

nce show ing that

the switch was def

ecti ve orimproper

ly manufactured. The only

fault attributa ble to the manufacturer of

the switch, aga

in in a light most favorable to the Plaintiff, is through defective de sign. Whether the design was defective, and, in effect, whe ther the manufacturer should have designed the switch in a

safer ma nner is a mixed q uestion of law and fact. The amount of fault, if any , attribut

able to the manufa

cturer for the d efectiv e desig n, is also

a matter-7-

of fact to be deter mined by jury . Whether the total fault of the manufacturer, however, rises to the level of fifty percen t of the tot al fault, is a question of law which the Court may determine on a motion for sum mary judgment. After consideration of all of the evidence, we have rea ched the conc lusio n that the fault of the manufacturer, as a matter of law, is conside rably less than fifty

percent.
In deciding this issue, we have taken the strongest legitimate view of the contested issues in fav or of the

Pl aintiff a

nd aga inst the De

fendant . We have c onsidere d, in accordance

with the contentions of the Plaintiff, that Davi d Vari re moved pan

els on the switch as asserted by

Gerald Redden and contrary to the cont entions of Square D and the testimony

of David Vari. We h ave con sidered , as the Pla intiff sug gests, that Square D should have manufactured the switch wit

h a safe ty device w hich woul d have sounded an alarm

when the unit was energized and the panels were r emoved, butwe find this to be o f little significance, because it is uncontroverted tha t Mr. Taylor knew the u nit was energized. We have further consider ed, as the Plaintiff contends , that Square D could have manufactured the s witch so that it was deenergized when the panels w ere re

moved, bu

t again find this de sign issu e to be le ss significant

when compared with the fact that Mr. T aylor was a n experienced electrician, he knew t

he switch was ene rgized, the switch bore mor e th an one warni ng, Mr. Tay

lor had been speci fically

told not to work on the switch until it was de-energized

and another electrician arrived to help, and lockout-tag out procedures were implemented. We have also considered that a shie ld could ha ve been put in place between the top and bottom portion s of the switch, again as the Plaintiff has suggested, but also recognize that the evidence shows that holes would have to be cut into such a shield to allow the switch to work properly , and arcing could still occur. We belie ve th e pro xi mate cause of the acc ident wasthe actio n of Mr. Ta ylo r in performing work on a

unit he knew w as ener

gized wh en he kne w his work

was in violation of the dir

ecti ons o f his supervisor, generally accepted lock out/tag out procedures, the company

safety policy , and warning labels on the switch itself. Thus, tragic as the untime ly d eath of M r. Tay lor is show n to be, we must reach the unmistaka

ble conclusion that

as a matter of law he was in fact re sponsible for more than fifty perc ent of the fault which resu lted in his death, and thus the fault of Mr. Taylor must be attributed to the Plaintiff, and the Plaintiff cannot recover.
On appeal, Mrs. Tay

lor argues that

the ultimate cause of

Mr. Taylor’s de ath was a defective design in the equipment upon which he was working and that his death could have been avoided by somesimple design changes. She further a rgues that, based on the evidenc e a vailable, a jury, not the trial judge deciding a motion for summary judgment, should determine whether or not the negligence

of Mr. Taylor e

xceeded 50% . In r

esponse , Square D argues that the trial court wa s correct in granting summary judgme ntbecause the undisputed facts demonstrate that the switchg ear on which Mr. Taylor

was work

ing wasnot defe ctive or

unreaso nably

dange rous. Squa

re D also argues that the u

ndisputed facts sh ow that the

neglig ence of

Mr. Tay lor in ig noring t

he prope r safety-8-

procedu res, prominent

warning signs, and explicit directions of his super visor wer e the dir ect cau se of his death.
IV. Defect in Des ign According to Tennessee law, set fort h in the Tennessee Products Liability Act, see Tenn. Code An n. §§ 29-28-1 01 to -108, a manufacturer or seller of a product may be he

ld liable for an injury caused b y itsproduct o nly if the “p roduct is determined to be in a defectiv e conditi on or unreaso nably

dange rous at the time it le

ft the co ntrol of th

e manufa cturer or sell er. ” Tenn. Code Ann. § 29-28-105 ; Davis v. Ko matsu America Industries Corp. , 42 S.W.3d 34 (Tenn. 2001). A plaintiff must thus show either that a product is defective or that it is unreasonably dangerous. A product is considered “unreasonably dangerous” if: [the] product is dangerous to an extent beyond that which would be contemplated by the ordinary c onsumer who purchases it, w ith t he ord inary kno wledge common to the c ommunity

as to its characteristics, or that the product because of its dangerou s condition would not be put on the market by a reasonably

prudent manufacturer

or seller, assuming that the manufacturer or se ller knew of its dangerous condition.
Tenn. Code Ann. § 29-28-102(8). A product is not

unreaso nably

dange rous bec ause of a

failure to adequa tely warn of a danger or ha

zard that is apparent

to the ordinary use

r. Tenn. Code Ann. § 29- 28-105(d).
A “defective condition,” on the other hand, is defined a s “a condition of a pr oduc t that renders it unsafe for

normal or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28- 102(2)

. I n interpreting and apply ing the definition of defective condition, courts have recognized that one factor to be considered is “consumer knowle dge about the risks inherent

in the use of (the) product.” Royson v. R.J. Reynolds Tobacco Co. , 849 F.2d 230, 236 (6th Cir. 1988). Further, the leg islature

has deci ded that in making the dete rmin ation o f whether a product is defective or unreasonably dangerous,
the state of sci entific and techn ologi cal kn owled ge availab le to the manufacturer or seller at the time the product was placed on the mar ket, rather than at the time of in ju ry, is applica

ble. Consid

eration is given also to the customary designs , methods, standards an d t ec hn iq ue s o f m an uf ac tu ri ng , i ns pe ct in g a nd te st in g b y o t her manufacturers or sellers of similar products.
Tenn. Code Ann. § 29-28-105(b). In orde r to establish a

defect in a

product, the plaintiff must “trace the injury to some specific e rror in con struction

or desig n of the [product] . . . .” Fulton v. Pfizer Hosp. Prods. Group, Inc. , 872 S.W.2d 908, 912 (Tenn . Ct. App. 1 993) ( quot ing Browder v. Pettigrew , 541 S.W.2d 402, 404 (Tenn. 1976)).-9-

The actual design of the product does not have to be perfect, accident proof , or incapable of causing injury to be considere d non-defe ctive. See, e.g., Curtis v. Universal Match Corp. , 778 F. Supp. 1421, 1430 (E.D. Tenn. 1991) (holding “where it is simply shown that there is a better, safer, or differe nt desig n which wo

uldhave averted the injury , this does not establish that there has been a departure from the required standar d of car e”); Fulton , 872 S.W.2d a t 912 (sta

ting tha t a “manufacturer

is not an insurer

of a product that is accident proof, or incapable of causing injury ”); Bishop v. Smith & Nephew Ric hards, Inc. , No. 02A01-9405-CV-00108, 1995 WL 99222, at *9 (Tenn. Ct. App. Mar. 10, 1995) (no Tenn. R. App. P. 11 application filed) (find ing t hat a manufacturer

is “not required

to desig n a perf

ect or a ccident -proof p roduct” ); Gerdts v. Nelson , No. 03S01-9405-CV-00190, 1995 WL 146232, at *3 (Tenn. Ct. App. Apr. 4, 1995) (no Tenn. R. App. P. 11 application filed).
This theory

stems fro m Kerley v. Stanley Works , 553 S.W.2d 80, 84 (Tenn . Ct. App. 1977), wherein this cour t quoted the following from 72 C.J.S. P RODU CTS L IAB IL ITY § 21:
A manufacturer, . . . is notan insurer of the product he designs, and it is not require d that the design adopted

be perfect, or render the pr oduct accident proof, or incap able of causing injury , nor is it necessary to incorporate the ultimate safety features in the product. Hence, a departure from the r equired standard

of care is not demonstrated where it is simply shown that there was a better , safer, or diff erent d esign which wo ul d h av e a ve rt ed th e i nj ur y. In Kerley , the widow of a deceased subcontractor sued the manufacturer of an electric power drill for the wrongful death o f her h usband, relying on the theories of strict liability and neg ligent design. Mr. Kerley , the deceased, had purchased the drill and used it r

egular ly in his work a s a subcontractor. After us ing the d rill for a bout a y ear, it st arted ma lfunction ing. Mr . Kerl ey made repairs on the dri ll and it ap peared to be functioning n ormally until he took the drill up a twenty foot ladder to drill holes in a metal plate on an overhead door. Mr. Kerley was electrocuted and fell from the ladder, striking his head on the concrete floor where he died immediate ly. Mrs. Kerley

argued that the h ousing a

nd the com

ponent pa rts of the drill were negligently designed, which re sulted in her husband’s death. Although Mrs. Kerley offered expert witnesses who testified that the wiring in the drill

was damaged after being

caught between the handle and the housing of the drill when Mr. Kerley was reassembling it after repairs, neither witness could express an opinion as to any defect in the design of thedrillwhich would make it inherently da ngerous to the user. Quoting the above langua ge from C.J.S., this court affirmed the trial co ur t’s gra nt of a dir

ected ve rdict for the drill manufacturer. Thus, it is not eno

ugh for Mrs. Tay lor to show that a better, safer, or different design to the substation would

have prevented her husband’s death; she must actually show that the product was unsa fe for normal or anticipatable handling. “The bur den is on the plaintiff to ‘show that ther e i s something wrong with the product.’” Fulton , 872 S.W.2d at 911-1 2 (quo ting Tatum v. Co rdis Corp. , 758 F. Supp. 457, 461 (M.D. Tenn. 1991)). There was no evidence introduced in the trial court that Square D failed

to follow n ational sa

fety standards for medium

voltage equipment in designing the-10-

substation on which Mr. Taylor was working. To the contrary , the only expert testimony offered, by Mr. Redden, confirmed that Square D had followed safety standards in designing the substation. Mr. Redden c ould only

offer h is opinions o n how the pr oduct could have been made safer by the addition of dead front panels or glastic; he offere d no proof

of how the

equipmen

t, as it was on the date of Mr. Taylor’s de ath, was defective or unreasonably dangerous. Further, there is no evidence th at th e p ro du ct wa s m al fu nc ti on in g i n a ny w ay. Co ns eq ue nt ly, we conclude that the plaintiff has failed to establish the necessary elements to sustain a cause of action for defective design.
Even if Ms. Taylor had suff iciently established

a claim to survive summary judg ment on the issue of Square D’s negligence, howeve r, Square D was nonetheless entitled to summary judgment for the o ther re ason stat

ed by the trial court. V. Comparative Negligence
After Te nnessee ’s adopti on of comp arative fault in McIntyre v. Ballentine , 833 S.W.2d 52 (Tenn. 1992), where both the plaintiff and the defendant eng aged in negligent c onduct that proximatel

y caused the injuries complained of, the plaintiff cannot rec over if his or her fault is equal to or greater than the fault attributable to the de fendant. Eaton v. M

cLain , 891 S.W.2d 587, 590 (Tenn. 1994). In Eaton , the Tenne ssee Supreme Court established or clarified the circumstance under which a tr

ial cour t can det ermine, as a matte

r of law, that th e plaintiff’s fau lt is equal to or greater than the defendant’s. The trial court is to take the strong est legitimate view of the evidence in favor of the plaintiff and grant the de fendant dismissal only

if reaso nable

minds could not differ as to the legal conclusions to be drawn from that evidenc e. Id . at 590. Further, [i]nsummary, the perc entage of fault assigned to ea ch party should be de pendent upon all the circumstances of the case, including suc h factors as: (1) the relative closene ss of the causal relationship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party ’s conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it; (3) the extent to whi ch th e def

enda nt fa iled t o rea sona bly utili ze an existing

opportuni

ty to avoid the in jury to t he pla inti ff; (4 ) the ex isten ce of a s udden emergen cy requiri ng a hasty decision ; (5) the s ignific ance of what the p arty

was atte mpting to accompl ish by the conduct, such as an attempt to save another’s life; and ( 6) the party’ s particular capacities, such as age, maturity , training, education, and so forth.
Id. at 592. Thus, “[i]f the court determines that all reasonable jurors would find the plain tiff’s f ault was fifty percen t or more, it must

grant summary judgmen t becaus e when th

e plaintif f’s fault is fifty percent or more he or she can not recover and there is nothing for the jury to decide.” Car r v . Ozburn-HesseyStorage Co. , No. 01-A-01-9511-C V- 00527, 1996 WL 383295, at *2 (Tenn. Ct. App. Jul. 10, 1996) (no Tenn. R. App. P. 11 application filed). Summary judgments enable c ourts to resolve cases on dispositive legal issues. Summary judgment is proper in virtually

any civilcase that can be resolved on the basis of leg al issues alone.-11-

Fruge v. Doe , 952 S.W.2d 40 8, 410 (Te nn. 1997) ; Byrd v. H

all , 847 S.W.2d 208, 210 (Tenn. 1993); Church v. Perales , 39 S.W.3d 149, 156 (Tenn. Ct. App. 2000). But, summary judgment should be granted only

when the undispute d facts, and the in ferenc es reas onably

drawn from the undisputed facts, support one conclu sion - tha t the par ty seeking the summary

judgment is entitled to a judgment as a matter of law. Webber v. State Farm Mut. Auto. Ins . Co. , 49 S.W.3d 265, 269 (Tenn. 2001); Brown v. Birman Managed Care, Inc. , 42 S.W.3d 62, 66 (Tenn. 2001); Goodloe v. State , 36 S.W.3d 62, 65 (Te

nn. 2001) ; Staples v. CBL & Associates , 15 S.W.3d 83, 88 (Tenn. 2000). Summary judgments enjoy no pr

esumption of correctne ss o n appeal. Scott v. Ashland Healthca re Ctr., Inc. , 49 S.W.3d 28 1, 284 (Te nn. 2001) ; Penle

y v. Honda Motor Co. , 31 S.W.3d 181, 183 (Tenn. 2000). Accordi ngly, a ppellate courts must make a fresh determination that the require ments of Tenn. R. Civ. P. 56 have been satisfied. Staples , 15 S.W.3d at 88 ; Hunter v . Brown , 955 S.W.2d 49, 50 -51 (Ten n. 1997); Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997). We must consider the evide nce in the light most

favorable to the non-moving party , and we must re solve all i nf erences in the non-moving party ’s favor. Doe v. HCA Health Servs., Inc. , 46 S.W.3d 191, 196 (Ten n. 2001); Memphis Hous. Auth. v. Thompson , 38 S.W.3d 504, 507 (Tenn. 2001). When reviewing the evidence, we must determine first whe ther fa ctual disp utes exist. I

f a fac tual dispu

te exists, we must

then determine whether the fact is material to the claim or defense upon which the summaryjud gment is predica ted and w

hether t he dispute d fact c

reates a genu

ine issue for tria l

. Byrd , 847 S.W.2d at 21 4; Rutherford v. Polar Tank Trailer, Inc. , 978 S.W.2d 1 02, 104 (Tenn. Ct. A pp. 1998). Then, we, like the trial court, must review the evidence presented at

the summar y judgment stage in the light most fav orable t o the non- moving pa

rty , here Ms . Tay

lor, aff ord all reasona ble inf erences to that party, and disca rd all countervailing evidence. Bradshaw v. Daniel , 854 S.W.2d 865, 8 70 (Tenn . 1993); Byrd , 847 S.W.2d at 210-11.
There is no real fac tu al dispute about how the accident herein happened. The undisputed facts show that Mr. Tay

lor, an e xperienc ed elec trician, trained multiple tim

es in the p

roper sa fety procedu res, disobeyed the orde

rs of his supervisor by c

hoosing not

to wait for assistance in the lock out/tag out of the substation. The equipment carried a warning sign. Thereis no dispute that if the substation had been locked out/tagged out or de -ener gi zed Mr. Taylor would not have been elec trocuted. There is no allegation that any thing in the design of the equipment would ha v e prevented this simple routine safety prec aution. Mr. Taylor’s own decision to commence work withoutfollowing the safety procedures led to h is death. While we certainly a cknowledge the tragedy of the situation, there is no escaping the fact that the e vidence clearly

demon strates t

h at reasona ble minds could not differ as to the legal conclusions that must be drawn from the evidence. The trial cou

rt prope rly granted summary

judgment for

Square D because Mr. Tay lor’s negligence was clearly g

reater than any

negligence on the part of Square D. The judgment of the tri al court

is affirmed and remanded. The costs of this appea l are taxed to the appellant, Susan Tay lor.

__________________________________ PATRICIA J. COTTREL L, JUDGE-12-